Hadfield v Police

[2012] NZHC 2363

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-412-000035 [2012] NZHC 2363

BETWEEN  TAHI SELWYN HADFIELD Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         12 September 2012

Counsel:         S N Claver for Appellant

R D Smith for Respondent

Judgment:      13 September 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 2.30pm on the 13th day of September 2012.

RESERVED JUDGMENT OF COLLINS J

Introduction

[1]      Mr Hadfield seeks leave to appeal sentences imposed upon him on 2 April

2012 in Dunedin District Court.    The sentencing that day involved two sets of offences:

(1)The first matters involved re-sentencing.  Mr Hadfield was required to be re-sentenced because he had breached the terms of a three months’ community detention sentence.   He had served one month of that sentence at the time of his reoffending.   The offences for which he

was to be re-sentenced were:

HADFIELD V NEW ZEALAND POLICE HC DUN CRI-2012-412-000035 [13 September 2012]

(a)       theft, contrary to ss 219(1)(a) and 223(d) of the Crimes

Act 1961;

(b)possession of cannabis, contrary to s 7(1)(a), (2)(b) of the Misuse of Drugs Act 1985;  and

(c)       unlawfully   taking    a    motor    vehicle,    contrary    to s 226(1)(a) of the Crimes Act 1961.

(2)       The new offences for which Mr Hadfield appeared for sentencing on

2 April 2012 were:

(a)       male  assaults  female,  contrary  to  s  194(b)  of  the

Crimes  Act  1961.     That  offending  took  place  on

25 January 2012;

(b)       male  assaults  female,  contrary  to  s  194(b)  of  the

Crimes Act 1961.  That offending occurred on 6 March

2012; and

(c)       wilful damage, contrary to s 11(1)(a) of the Summary

Offences Act  1981.    That  offending  took  place  on

6 March 2012.

[2]      The   District   Court   Judge   imposed   a   final   sentence   of   13   months’ imprisonment.   The District Court Judge attached conditions to that sentence that Mr Hadfield undertake an anger/alcohol treatment programme.  The District Court Judge also imposed a protection order against the complainant in relation to the assaults which took place on 25 January and 6 March 2012.   A reparation order amounting to $70 for the wilful damage count was also imposed.

[3]      The  essence  of  Mr  Hadfield’s  appeal  is  that  the  sentence  imposed  was

manifestly excessive in the light of:

(1)       the nature of the charges;  and

(2)       his previous offending.

The offending

[4]      The  offences  for  which  Mr  Hadfield  was  re-sentenced  appeared  to  have occurred on 4, 11 and 23 October 2011.

[5]      From  the  information  before  me  I  understand  that  on  4  October  2011

Mr Hadfield was a passenger in a vehicle.  The vehicle pulled into a petrol station. Mr Hadfield got out and pumped petrol into the vehicle.  He then got back inside. The vehicle was driven away. The value of the petrol stolen was $31.55.

[6]      On 11 October 2011 Mr Hadfield was found in a street in Dunedin with a small quantity of cannabis in his possession.

[7]      On 23 October 2011 Mr Hadfield took a caterpillar digger parked at a work site.  He did not have possession to use it.

[8]      When Mr Hadfield was sentenced for these offences on 13 February 2012 he

was sentenced to three months’ community detention.

[9]      The  offending  which  took  place  in  January  and  March  2012  involved Mr Hadfield assaulting his partner.  On 25 January 2012 Mr Hadfield and his partner were at his home.  They had an argument about financial issues.  Mr Hadfield asked his partner to leave.  As she was getting her things he grabbed her around the throat with a forceful closed grip.   She bit his hand to get away.   She reached for her cellphone but was pushed to the floor by Mr Hadfield.   She then ran to use the phone.  He pulled the phone cable out of the wall and threw the phone to the floor. She went upstairs to get her bag, when he approached her from behind, picked her up with both hands and “threw her to the ground forcefully”.  Mr Hadfield’s partner fled the address and went to a neighbour’s property and called the police.  She suffered an abrasion to the right side of her neck, a bruise and scratch to her shin and a sore left thigh and elbow.

[10]     On 6 March 2012 the couple were again together, this time at Mr Hadfield’s partner’s house.  They had another argument.   Mr Hadfield’s partner went outside and sat on the porch.  Mr Hadfield approached her.  With a closed fist, he forcefully tapped her on the forehead approximately five times and said “what is wrong with you?”  He then spat at her and slapped her across the right cheek.  She demanded that he leave and threw a bag of his things over the neighbour’s fence.  He went to get them and found his pounamu necklace had been damaged, and whilst in an angry state of mind he ran back inside and started to kick items around.   Mr Hadfield’s partner, fearfully, picked up a glass, smashed it, confronted Mr Hadfield and asked him to leave.  A violent struggle ensued.  Mr Hadfield took the glass and threw it to the floor.   He punched a wooden door panel, splitting the wood.   Mr Hadfield’s partner picked up Mr Hadfield’s cellphone and again told him to leave.  He grasped her thumb and pulled it back until he received his cellphone.  He then left, yelling abuse at his partner.  As a result, Mr Hadfield’s partner suffered a sprained thumb, had minor scratches to her upper arms and redness to her forehead and cheek.

Prior convictions

[11]     Mr Hadfield has  12 previous convictions (not including the offences  for which he appeared for re-sentencing).   The previous offences are for breach of community work, disorderly behaviour, burglary, breach of a liquor ban, failing to comply with licence conditions, dangerous driving, obtaining by deception, driving while licence revoked  and  injuring with  intent  to  injure.   The most  recent  and troubling prior conviction was the injuring with the intent to injure charge committed on 15 November 2009, for which Mr Hadfield received a two year period of imprisonment.

The District Court Judge’s decision

[12]     The District  Court  Judge emphasised in  his  decision  that  his  purpose in sentencing Mr Hadfield was to denounce and deter.   He said he wanted to send a message that domestic violence will not be tolerated.

[13]     As I understand the District Court Judge’s sentencing notes, his Honour was mindful to impose an end sentence that reflected the totality of the offending that he was  considering  but,  he  also  imposed  cumulative  sentences  within  the  level  of totality that he was contemplating.  In respect of each category of offence:

(1)The District Court Judge imposed a sentence of four months’ imprisonment in relation to the matters for which he appeared for re- sentence.   That is to say, the District Court Judge imposed a four months period of imprisonment as a substitution for the remaining two months’ community detention sentence that had previously been imposed by the District Court.

(2)       For the male assaults female charge relating to the incident in January

2012 the District Court Judge imposed a period of  three months’ imprisonment.  No credit appears to have been given for a guilty plea in relation to this matter.

(3)For the male assaults female and wilful damage charges arising from the incidents that occurred in March 2012 the District Court Judge said that this would

ordinarily be in the realm of six [months] but I am going to give  you  credit  for  your  plea  and  take  into  account  the totality principle ... [and impose] six months.

Submissions

[14]     Mr Claver, counsel for Mr Hadfield, very helpfully submitted that:

(1)the end sentence of six months for the male assaults female and wilful damage counts was excessive.  He relied upon Willis-Croft v Police[1] to support this submission;

[1] Willis-Croft v Police HC Hamilton CRI-2009-419-33, 18 May 2009.

(2)       the sentence of four months’ imprisonment for the matters for which

Mr Hadfield  appeared  for re-sentencing was  excessive and  that  a

sentence of two months’ imprisonment would have been appropriate;

and

(3)       considered overall an end sentence of nine months’ imprisonment

would have been more reasonable in this case.

[15]   Mr Smith, for the Crown, submitted that the sentence of nine months’ cumulative for the male assaults female charges was entirely appropriate and very consistent with sentences normally delivered for offending of this kind.

[16]     In the best traditions of the Crown, Mr Smith conveyed some misgivings about the sentence that was imposed in respect of the matters that Mr Hadfield was re-sentenced on.  Mr Smith expressed his reservations about the appropriateness of a sentence of four months’ imprisonment being imposed as an effective substitution for a remaining sentence of two months’ community detention.  Mr Smith submitted that in the circumstances of this case it would be more appropriate for a sentence of two months’ imprisonment to have been imposed for those matters.

Jurisdiction

[17]     The power to hear and determine the appeal is pursuant to s 121 Summary

Proceedings Act 1957.

[18]     Extension of time is covered by s 123, which provides:

123     Powers of Judge of High Court as to extension of time

(1)       Any Judge of the High Court may, on the application of the appellant or intending appellant, extend any time prescribed or allowed under this Part of this Act for the filing of any notice or the stating of any case or the doing of any other thing in respect of any appeal or proposed appeal to the High Court.

(2)       Any appellant or intending appellant may at any time apply to a Judge of the High Court to review any decision of a District Court Judge or Justice or Justices refusing an extension of time for the stating of a case under this Part of this Act.  On any such application a Judge may, in his discretion, confirm the decision, or reverse it and allow such extension of time as he thinks fit.

[19]     In  Cleggs  Ltd  v  Department  of  Internal  Affairs,[2]   Thorp  J  discussed  the following criteria as relevant to the application of this section:

[2] Cleggs Ltd v Department of Internal Affairs HC Auckland M1032/84, 5 September 1984.

(1)      The onus is on the applicant to show that there existed special circumstances why the decisions and sentences should not stand;

(2)      The discretion is given essentially for the purpose of avoiding miscarriages of justice;

(3)       That   all   the   circumstances   of  the   particular  case   should   be considered in deciding whether sufficient grounds had been shown; but

(4)       One of the matters which must be established is that there was a real likelihood  that  an  appeal  would  succeed  if  leave  were  granted. Some authorities go so far as to say that the likelihood must be such that the applicant can establish the probability of success.

[20]     These principles have been recently affirmed many cases,[3] including Virendra v Police,[4]  in which Ronald Young J added to that list the requirement for some explanation as to the reasons why the appeal has been filed late.

[3] See, for example, Hill v Ministry of Fisheries [2012] NZHC 511, Te Rito v Ministry of Social

Development [2012] NZHC 1872 and Ravelich v Police HC Auckland CRI-2010-404-471,

21 July 2011.

[4] Virendra v Police HC Wellington CRI-2011-485-74, 27 September 2011 at [5]-[6].

[21]     In my assessment, it is appropriate for the appellant to appeal out of time in this case. Although no compelling reasons for the delay have been provided, there is clearly no prejudice in me considering Mr Hadfield’s appeal.

[22]     Regarding the general scope of the jurisdiction under s 121, in R v Monkman,

the Court of Appeal explained the term “clearly excessive” in the following terms:[5]

Whether a sentence can be said to be manifestly excessive turns on the maximum  sentence  prescribed  by  law  for  the  offence;     the  level  of sentencing customarily observed with respect to that offence;   the place which  the  conduct  in  question  assumes  on  the  scale  of  seriousness  of offences of that type;  and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending).

[5] R v Monkman CA445/02, 3 March 2003 at [6].

[23]     When considering if the sentence was manifestly excessive, the focus is on the correctness of the end result, not the process by which the sentence was reached.[6]

As the Court of Appeal observed in Ripia v R:[7]

... 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.

[6] R v MacCulloch [2005] 2 NZLR 665 (CA) at [50].

[7] Ripia v R [2011] NZCA 101 at [15].

[24]     And similarly in R v Xie:[8]

[8] R v Xie [2007] 2 NZLR 240 (CA) at [17].

(a)       With multiple offences the sentence must reflect the totality of the offending;

(b)      In respect of multiple offences, this Court will not insist that the total sentence be arrived at in any particular way;  and

(c)       The  total  sentence  must  represent  the  overall  criminality  of  the offending and the offender.

Analysis

[25]     I respectfully agree with counsel that the District Court Judge may have adopted the  wrong  approach  when  he substituted the  remaining two  months  of community detention with a sentence of four months’ imprisonment.   When one considers the approach taken by the Court of Appeal in R v Morgan[9]  I agree with counsel that an end sentence of two months’ imprisonment would have been appropriate.  In the circumstances of this case, I believe that the appropriate starting

point for this offending was three months’ imprisonment.  A one month deduction should be granted for Mr Hadfield’s guilty plea.

[9] R v Morgan [2008] NZCA 232.

[26]     In relation to the offences which took place in January and March 2012, I recognise there is no tariff judgment for sentences concerning male assaults of females.[10]    A wide range of sentences have been imposed.   In my view, a starting point of three months’ imprisonment for the first incident was entirely appropriate.  I

also consider that a further six months’ period of imprisonment for the second set of

incidents in March 2012 was entirely appropriate and in line with the authorities I have  considered.1[11]      A  further  uplift  of  three  months’  imprisonment  to  reflect Mr Hadfield’s previous offences, in particular the injuring with intent to injure, was also very justified.  From this end point of 12 months I would deduct three months to reflect Mr Hadfield’s guilty plea.

[10] Waimoana v Police [2012] NZHC 134 at [19].

[11] Hunter v Police [2012] NZHC 107, R v Richardson [2012] NZHC 1465, Lusty v R [2012] NZCA

275 and Te Tau v Police [2012] NZHC 1068.

[27]     This results in an end sentence of nine months’ imprisonment for all of the

offences which occurred in January and March 2012.

[28]     To this I add the two months’ prison sentence for the matters on which Mr Hadfield was re-sentenced.   This leaves an end total sentence of 11 months’ imprisonment.

[29]     Under normal circumstances I would not be willing to allow an appeal that involved a reduction in prison sentence from 13 to 11 months.   However, in this instance I believe that the District Court Judge did err when he imposed a sentence of four months’ imprisonment in substitution for two months’ community detention. This in my assessment is quite a significant factor and justifies the appeal being allowed to the extent that I have indicated.

Result

[30]     The appeal is allowed.  The final prison sentence of 13 months is quashed and substituted with a period of imprisonment of 11 months.

D B Collins J

Solicitors:

Crown Solicitor, Dunedin for Respondent