Jarden v Police
[2017] NZHC 2539
•18 October 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2017-409-000077 [2017] NZHC 2539
BETWEEN CRAIG MAURICE JARDEN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 11 October 2017 Appearances:
J Lucas for the Appellant
C J Bernhardt for the RespondentJudgment:
18 October 2017
JUDGMENT OF NATION J
[1] Mr Jarden was sentenced on 13 June 2017 to 18 months’ imprisonment for charges of male assaults female, breach of release conditions, possession of methamphetamine and intentional damage.1 He now appeals that decision.
Facts
[2] On 30 March 2015, Mr Jarden was sentenced to two years and five months’ imprisonment for other offending. The end release date for that earlier offending was in July 2017. He was released from prison on parole and on pre-release conditions on 6 September 2016.
[3] On 23 November 2016, Mr Jarden and the victim, his then partner, got into an argument at the supermarket. They left in their car and drove to a nearby street.
1 Police v Jarden [2017] NZDC 12614.
Mr Jarden pulled the victim’s head down onto his lap and punched her four to five times to the face and head with a closed fist. He then pushed her against the car door before opening the passenger door and throwing her cell phone outside. He then pushed her out of the car, causing her head and upper body to hit the ground.
[4] After a few minutes, Mr Jarden picked up the victim and they returned to their home address. In their sleepout at that address, Mr Jarden approached the victim from behind and punched her, striking her on the side of the head. The force of the punch caused her head to hit the door and she fell to the ground. He then left in his car. The victim sustained bruising to her face, head and arms.
[5] On 27 November 2016, Mr Jarden and victim were in the sleepout. An argument began when she went to leave. He pulled her head towards him and punched her on the nose with a closed fist. The force caused her to fall back onto the bed. Mr Jarden climbed on top of her and pinned her down. He turned her over so she was face down and pushed her face into the bed. He told her, “Keep screaming, no one around here cares”. She managed to free herself and flee. The victim sustained a bleeding and swollen nose.
[6] On 22 January 2017, Mr Jarden went to the home of a friend of the first victim. He walked up the driveway and threw a small rock through the back window of the friend’s car. He then left.
[7] On 24 January 2017, the police arrested Mr Jarden. A search of his back pack was then carried out. It contained 0.48 grams of methamphetamine in a point bag and 150 empty point bags. Mr Jarden admitted that the bag was his.
[8] As a result of this offending, Mr Jarden returned to prison on 25 January
2017. The Parole Board subsequently recalled him to serve the remainder of his earlier prison sentence. Because of the time he had been “on the run” when on pre- release, the end date for his sentence on the earlier offending was likely to have been around the end of August 2017.
District Court decision
[9] After setting out the facts of the offending, the Judge noted Mr Jarden’s previous history. This included convictions for breaching protection orders, a firearms offence, wilful damage, common assault and threatening to kill.
[10] The Judge considered that the relevant purposes of sentencing were the needs to denounce the offending, to hold Mr Jarden to account, to deter both him and others from such offending and to rehabilitate him. This required a sentence of imprisonment due to the seriousness of the offending, the appellant’s offending record, his unresponsiveness to the sentence previously imposed and his status as a serving prisoner at the time of his offending.
[11] The Judge took the charge of male assaults female as the leading charge and then set a sentence based on the totality of the offending. He set a starting point of
16 months which was uplifted by six months for the personal aggravating factors of Mr Jarden’s previous offending, offending under sentence and offending while on bail. There were no personal mitigating factors that justified a reduction. The Judge took four months off for guilty pleas. This resulted in an end sentence of 18 months’ imprisonment. This was imposed cumulatively upon the sentence imposed on 30
March 2015.
[12] The Judge also ordered reparation for the damage to the vehicle and set concurrent sentences of imprisonment for the other offences.
Principles on appeal
[13] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 It is only appropriate for this court to intervene and substitute
its own views if the sentence being appealed is “manifestly excessive” and not
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
justified by the relevant sentencing principles.3 On an appeal, the focus is on the end sentence rather than the process by which it was reached.4
Submissions
Appellant’s submissions
[14] Mr Lucas submitted that the overall end sentence of 18 months’
imprisonment was manifestly excessive as:
(a) the uplift for his aggravated personal circumstances was too high having regard to the fact he was recalled to prison;
(b) the discount for his guilty plea should have been the full 25 per cent;
and
(c) the sentence should have been made concurrent with his sentence of imprisonment imposed in March 2015.
[15] Mr Lucas acknowledged that an uplift for Mr Jarden’s aggravating personal factors was appropriate, however, this must be proportionate to the starting point and should not overly punish Mr Jarden for his history. The uplift here was around 37.5 per cent of the starting point. Counsel submitted that was too great on the basis Mr Jarden did not have a significant violent history and that he was recalled to prison as a result of this offending. Counsel submitted that a three month uplift would have been sufficient.
[16] Counsel submitted that the discount for Mr Jarden’s guilty plea should have been 25 per cent rather than 18 per cent, as it came at the earliest possible opportunity. The pleas were made at the case review hearing after the Police
withdrew some of the more serious charges and amended the summaries of fact.
3 Ripia v R [2011] NZCA 101 at [15].
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
Respondent’s submissions
[17] For the Crown, Mr Bernhardt submitted that the end sentence was not manifestly excessive. Counsel submitted that the six month uplift was reasonable given Mr Jarden offended while on bail and while subject to a sentence, and he had previous offending of a similar nature.
[18] Counsel submitted that Mr Jarden was not entitled to the full discount for his guilty plea because he delayed entering it for tactical reasons. He said Mr Jarden originally faced four charges of male assaults female, three of which were withdrawn. However, the summary of facts still referred to all four incidents so the content did not change.
[19] Counsel submitted that the sentence should not have been imposed concurrently with Mr Jarden’s previous sentence because it was not part of a series of connected offences, as set out in s 84 Sentencing Act 2002. A concurrent sentence would be inappropriate.
[20] Mr Bernhardt acknowledged that, in providing for an uplift for previous offending and for this offending occurring while Mr Jarden was still subject to sentence, it appeared the Judge did not take into account the way in which this further offending had resulted in him having to serve his original prison sentence. Mr Bernhardt however submitted that, if there was going to be any adjustment to the sentence on account of this, then that would be a further reason for there to be no change with regard to the discount allowed for guilty pleas and there would be less reason to interfere with the decision the Judge had made to impose a cumulative, rather than concurrent, sentence.
Discussion
[21] The Judge adopted a starting point of 16 months’ imprisonment on the lead charge of male assaults female but took into account the other charges. It was thus a starting point for all offending. No issue is taken with that starting point.
[22] The Judge then imposed an uplift of six months for personal aggravating factors relating to Mr Jarden’s “previous offending, offending under sentence and offending on bail after appearing on breach of release conditions”, to bring the starting point up to 22 months. The reference to offending on bail appears to have been a slip. The record indicates the offending occurred not when Mr Jarden was on bail but when he was on parole and subject to pre-release conditions. On either basis, it was an aggravating factor properly to be brought into account.
[23] The uplift thus included a period of imprisonment for the fact this offending occurred when Mr Jarden was under sentence. The approach the Judge took was consistent with the submission made by then counsel for the defendant. He had submitted “an uplift should attach for both the issue of offending on parole and his prior history”. He submitted “three to six months would be sufficient in that regard”.
[24] Mr Jarden’s new counsel, Mr Lucas, has however pointed out that, when an appellant is recalled to prison on an earlier prison sentence as a result of the offending, care has to be taken to avoid double punishment for the fact the offending occurred while the offender was subject to sentence.
[25] When someone still subject to a prison sentence is on release, if further offending causes him to be recalled to prison, the time he is in prison while on remand for the further offending is not credited against any sentence which is imposed for that further offending. The time he has spent in prison on recall is thus a punishment in itself for the fact he has offended while subject to sentence.
[26] The Court of Appeal confirmed the need to avoid double punishment in this way in Tukuafu v R.5 The approach that was taken then was consistent with other Court of Appeal decisions such as Vernon v R6 and Oliver v R.7
[27] This does not mean the time spent in prison on recall should be deducted on an exact matching basis from the period of potential uplift. To do so would be to
ignore the fact that the later offending occurred while the offender was on parole and
5 Tukuafu v R [2015] NZCA 251 at [12].
6 Vernon v R [2010] NZCA 308.
7 Oliver v R [2014] NZCA 285.
subject to release conditions. That is still a relevant aggravating factor. Nevertheless, there must be some adjustment to avoid double punishment.
[28] In Tukuafu, the sentencing Judge had allowed for an uplift because the offending had occurred while the defendant was on parole and subject to pre-release conditions. The time the offender spent in prison on recall was seven months. The Court of Appeal adjusted the sentence to avoid double punishment by effectively reducing the uplift by five months.
[29] In Vernon, the Judge said the potential uplift for serious offending on account of previous convictions and the fact further offending occurred while on parole, was
18 months. The actual uplift adopted was reduced to 12 months to reflect the fact that the offender had spent 14 months in prison on recall. The Court of Appeal did not interfere with that approach.
[30] Mr Jarden was released from prison on standard and special release conditions on 6 September 2016. He breached his conditions as to residence on 27
November 2016. A warrant for his arrest for this breach was issued on 19 December
2016. He was recalled to prison on 25 January 2017. On the same day, he appeared in Court on other charges. As a result of this further offending, he was thus in prison for approximately an additional 10 months on his earlier sentences.
[31] I accept there was an error in the Judge not taking this further period of imprisonment on his original sentence into account.
[32] On his uplifted starting point of 22 months, the Judge allowed a discount of four months, or 18 per cent, for guilty pleas, resulting in the end sentence of 18 months’ imprisonment. It was submitted the discount should have been for the maximum 25 per cent available in terms of Hessell v R.8
[33] Mr Lucas acknowledged the statement from the Supreme Court that “all
circumstances in which the plea was entered must be addressed, not merely the
timing”.9 He said the guilty pleas had been entered at the case review hearing after more serious charges were withdrawn by the Police and the summary of facts had been amended, and this resulted in the saving of time and expense and the benefit for the victim that can justify the maximum discount of 25 per cent.
[34] I do not consider there was any error in the discount of 18 per cent for guilty pleas.
[35] Mr Lucas said that, with regard to the delay in entering guilty pleas, the courts need to recognise the delays that can occur in confirming a grant of legal aid, and the delays that counsel can face in obtaining disclosure of relevant documents from the Police and being able to discuss matters in detail with a defendant who is in custody. I have had regard to those matters.
[36] The amendments made to the summary of facts related to a charge that Mr Jarden demanded $10,000 with intent to steal it and a charge of posting a digital communication (text messages) that would do harm. Those charges were ultimately withdrawn.
[37] Distinct from that offending was the charge of possessing a pipe for consuming methamphetamine, a pipe which had been found in his possession, the breach of pre-release conditions, the charge of intentional damage and four charges of male assaulting a female relating to four separate such incidents. Not guilty pleas were entered on all charges on 23 February 2017. It was not until 19 April 2017 that Mr Jarden pleaded guilty to the charges on which he was sentenced.
[38] Mr Jarden then pleaded guilty to one charge of male assaults female, but it was agreed that charge was on a representative basis with the summary of facts still referring to the four separate incidents that had been the subject of the original charges. The basis for the original four charges and the detail of them, as contained in the summary of facts, must have been known to Mr Jarden soon after his initial appearances in Court on the relevant charges. His second such appearance was on 1
February 2017.
[39] It was quite proper for the Police to lay four separate charges for this offending. With the circumstances of each offence being clearly and separately identifiable, s 20 Criminal Procedure Act required the charges to be laid in this way.10 With guilty pleas based on the summary of facts for this offending, the potential sentence on one charge was unlikely to be any different from what it would have been with four separate charges for the same offending with the same victim.
Mr Jarden could thus have pleaded guilty to his acknowledged offending earlier than he did.
[40] The laying of a representative charge relating to clearly separate and identifiable acts, is not what is required or permitted by s 20 Criminal Procedure Act. Where a defendant is acknowledging guilt in respect of those separate acts, but there has been a delay in entering a guilty plea, he should not expect the delay to be ignored on the basis he negotiated with the prosecution for it to proceed based on just one charge but with reference to a number of separate and identifiable acts. Where he is acknowledging guilt in respect of all such acts, it would be appropriate for him to plead guilty to separate charges in respect of such separate acts at the first reasonable opportunity rather than to delay the entering of such a plea on the basis there should be just one charge but covering all such acts.
[41] There was thus an element of tactical manoeuvring in delaying matters and having the number of charges reduced from four to one representative charge in the way that happened. This counts against the credit which is to be given for guilty pleas.11
[42] An offender will not necessarily be entitled to the full discount of 25 per cent just because the guilty plea has been entered after negotiation and the withdrawal of a charge.12
[43] The evidence against Mr Jarden in relation to these matters was obviously strong. There were significant benefits from his guilty pleas which entitled him to
some credit but, in the circumstances, a discount of 18 per cent was appropriate.
10 Y v R [2016] NZCA 257 at [16]-[17]; R v Bogue [2014] NZHC 1989 at [56]-[59].
11 Cooper v R [2013] NZCA 551 at [30].
12 Hessell v R, above n 8; Oliver v R, above n 7, at [12].
[44] It was then argued for Mr Jarden that, in all the circumstances, the sentence imposed should have been concurrent with those that Mr Jarden had to complete following his recall to prison. Because of the time he spent “on the run”, those earlier sentences were going to end around August 2017. A cumulative sentence of
18 months' imprisonment was going to mean the total sentence for this latest offending and the earlier offending would be 49 months, just over four years.
[45] In Faulkner v R, the Court of Appeal said the guidance in s 84 Sentencing Act, as to the use of cumulative and concurrent sentences, envisages an offender being sentenced for different offences at the same time rather than when there has been a significant gap between the two.13 The Court of Appeal explained how, with a cumulative sentence, the offender could be eligible for parole at an earlier date.14
This is because the various cumulative sentences are to be treated as a notional single sentence. The offender’s new parole eligibility date would be calculated by adding one third of the new sentence to his previous parole eligibility date.15
Sentencing on a cumulative basis however delays the end release date on all sentences.
[46] The Court of Appeal also said s 85(2) Sentencing Act required the Court to stand back and consider whether the total period of imprisonment resulting from all the offending is “wholly out of proportion to the gravity of the overall offending”.16
[47] The wording of ss 85(1)-(4) suggests that those legislative provisions are to be considered when a court is considering, at the one time, the sentences to be imposed for different offences. The Court of Appeal has nevertheless said that the totality principle must also be applied with successive sentences for connected
events, or successive but proximate sentencing for separate events.17
[48] Mr Jarden was sentenced for this latest offending on 13 June 2017. Imposing
cumulative sentences will extend the end date on Mr Jarden’s sentence of
13 Faulkner v R [2016] NZCA 315 at [22].
14 At [19].
15 In accordance with Parole Act, ss 20, 84(1) and (4).
16 At [23].
17 R v Johansen [1997] 15 CRNZ 111 (CA) at [120]; Skelton v R [2011] NZCA 35 at [33].
imprisonment for all offending by around two months on what it would have been if the sentences were concurrent.
[49] The sentencing Judge’s uplift for prior offending and offending while subject
to sentence was six months.
[50] Mr Jarden was sentenced on 30 March 2015 for five charges of breaching a protection order, threatening to kill and common assault for offences committed between 9 October 2014 and 23 December 2014. The pre-sentence report said the offending for which Mr Jarden was sentenced and on which he appeals continues “the pattern of domestic violence for which he was imprisoned in 2015”. The report assessed his risk of reoffending and of causing harm to third parties as high. The report referred to the “recidivist nature of the offending” albeit with a different partner. That previous offending justified an uplift but it had to be proportionate to the starting point sentence on the subject offending.
[51] To avoid double punishment for this further offending occurring while Mr Jarden was subject to sentence, and to arrive at an appropriate sentence for both the earlier and latest offending, I consider there should be no uplift on the starting point sentence but the ultimate sentence imposed should be cumulative on the sentences for the earlier offending.
[52] The appropriate starting point for the further offending was 16 months’ imprisonment. I adjust that by three months for Mr Jarden’s guilty pleas to bring that sentence back to 13 months.
Conclusion
[53] Mr Jarden’s appeal is allowed. The sentence of 18 months’ imprisonment on the charge of male assaults female is quashed. In its place, a sentence of 13 months’ imprisonment is imposed.
[54] The sentences originally imposed for the further offences remain, that is: breach of release conditions, four months; possession of methamphetamine pipe, one month; and intentional damage of the motor vehicle, two months. Those sentences
are concurrent with each other and the sentence on the male assaults female charge but all these sentences are cumulative upon the sentences imposed upon Mr Jarden on 30 March 2015.
[55] Mr Jarden must still pay reparation of $340. As with the original sentencing, I am not imposing standard conditions or special conditions.
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co., Christchurch.
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