Jefferies v Police

[2019] NZHC 2702

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000106

[2019] NZHC 2702

BETWEEN

SHANNON LEE JEFFERIES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	10 October 2019
Appearances:	M Barrell for Appellant S Dayal for Respondent
Judgment:	22 October 2019

JUDGMENT OF DUNNINGHAM J

Introduction

[1]                The appellant, Shannon Jefferies, pleaded guilty to a charge of common assault. He was sentenced to six months’  imprisonment  on  15  July  2019  by  Judge Garland.1 The appellant appeals that sentence on the basis it was manifestly excessive.

Facts

[2]                The appellant was in a relationship with the victim for about two months. He became concerned about whether she was being faithful to him and he arranged for a female associate to meet the victim at the appellant’s home and assault her. He picked the victim up from her home address and drove her to his address. When they arrived they were approached by the female associate, who grabbed the victim by the hair and

1      Police v Jeffries [2019] NZDC 13717.

JEFFERIES v NEW ZEALAND POLICE [2019] NZHC 2702 [22 October 2019]

pulled her out of the vehicle while throwing punches at her head. The victim was dragged into the appellant’s home, where the assault continued. The associate threw several more punches with both hands directed at the victim’s head and face, connecting multiple times. The appellant stood by and watched the assault, making no effort to stop it.

[3]                The victim received swelling to the back of her head and face and two black eyes.

Principles on appeal

[4]                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 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4

District Court decision

[5]                Judge Garland considered the appellant’s history of violence, including convictions for wounding with intent to cause grievous bodily harm, male assaults female, common assault and assault with intent to injure for which he was sentenced to imprisonment for eight years and six months. He noted that as a consequence of the assault, the appellant had now been recalled to prison for the charges he was sentenced to in 2012.

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

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

[6]                Judge Garland adopted a starting point of eight months. He then allowed a two month credit  for the appellant’s  guilty plea, resulting in  an end sentence of   six months’ imprisonment.

Victim Impact Statement

[7]                In the course of reviewing the file in advance of hearing the appeal, I became aware that the Judge had relied on an unrelated victim impact statement. Enquiries were made and it appeared a victim impact statement had not been prepared before sentencing in the District Court. However, shortly after the appeal was heard, advice was received that a victim impact statement had been prepared on 9 October 2019. As a consequence, I advised counsel that once they had received the victim impact statement I would receive written submissions on the victim impact statement and its relevance to the appeal, if any.

Submissions

Appellant’s submissions

[8]                Ms Barrell, for the appellant, submits that the starting point of eight months was manifestly excessive given the appellant was only a party to the offending and not the primary offender. She says the Court should have taken this lowered culpability into account. Ms Barrell cites Te Rangi v R, in which the Court of Appeal lowered a sentence for using a firearm from three years to one year and four months in recognition of the appellant’s “secondary role”.5 Ms Barrell submits that the appellant should have received a similar reduction.

[9]                Ms Barrell also submits the Judge failed to take into account the period of just over three months the appellant will spend in prison on recall for previous offending, in addition to the six months imposed. She cites a number of cases in which the courts have allowed discounts for time spent on recall.6 Ms Barrell submits that without some discount for time spent on recall, the appellant is effectively subject to a

5      Te Rangi v R [2011] NZCA 363 at [14].

6      R v Paul CA409/05, 26 April 2006; R v Repia CA12/95, 26 May 1995; Tukuafu v R [2015] NZCA 251; Faulkner v R [2016] NZCA 315.

manifestly excessive sentence of nine and a half months’ imprisonment for this offending.

[10]            In relation to the victim impact statement, Ms Barrell submits that it is “fresh evidence” and this Court should only have regard to it if it is “necessary or expedient in the interests of justice” to do so.7 In this case, Ms Barrell submits it is not necessary or expedient in the interests of justice to have regard to this evidence. The injuries the complainant received were already taken into account by the Court as they were recorded in the summary of facts. Furthermore, the victim impact statement exaggerated the injuries. For example, there was no reference in the summary of facts prepared after police obtained the medical records, to her having a jaw out of line.

[11]            There is also highly prejudicial material in the victim impact statement which does not form part of the case against the appellant. For example, there is reference in the victim impact statement to a firearm being involved, which is strongly denied by the appellant and is not part of the case against him.

Respondent’s submissions

[12]            Ms Dayal for the respondent submits that the sentence imposed was within range. She notes the present offending was aggravated by being domestic violence and involving a significant breach of trust. It also involved the aggravating features of an attack to the victim’s head and face and having an element of vigilantism to the assault.

[13]            Ms Dayal points out that there were also aggravating features relevant to the appellant. He has a history of violent offending and was subject to parole when the offending occurred.

[14]            In respect of the second ground of appeal, Ms Dayal accepts that the time spent on recall can be taken into account in fixing the length of the new sentence of imprisonment in order to avoid an element of double-counting.8 However, the Court must also take into account, as an aggravating factor, the fact that the offending

7      Criminal Procedure Act 2011, s 335.

8      Tukuafu v R, above n 6.

occurred while the appellant was subject to sentence. In Oliver v R, the Court held that the allowance for time spent on recall is not required to exactly equal the time spent in custody.9 Furthermore, the adjustment for the fact that the offending occurred while subject to a sentence would, to some extent at least, cancel that allowance out.

[15]            Thus, while Ms Dayal accepts that some credit could be given for the period of just over three months served on recall, that would be at least partially negated by an uplift to reflect the fact of the offending on parole.

[16]            In respect of the victim impact statement, Ms Dayal simply notes that police obtained the victim impact statement “mistakenly thinking it was required for the sentence appeal” and she submits that the statement emphasises the seriousness of the assault.

[17]            In short, the overall consideration for the Court is whether the six months imposed by the Judge was within range, and the respondent submits that it was.

Analysis

[18]            I do not accept that the fact the appellant was a party to the offending rather than the person who actually assaulted the victim means the starting point was manifestly excessive. This was a serious assault which involved premeditation, an attack to the head, and resulted in injury to the victim.

[19]            In my view, it is difficult to see the appellant as less culpable simply because he was not the physical attacker. He played a significant part in the assault as he arranged for it to take place, he brought the victim to the place where she would be assaulted, and he then stood by and watched the assault take place. Culpability is not solely dependent on how active a role was played in the physical assault. In Nikua v R the Court accepted that the party who organised the assault of the victim was “the most culpable” given her planning, pre-meditation, position of authority and breach of trust.10

9      Oliver v R [2014] NZCA 285.

10     Nikua v R [2016] NZHC 2202.

[20]            In my view, the starting point adopted by Judge Garland of eight months was at the lower end of available sentences for the severity of attack involved. By analogy with other cases, a starting point of at least 10 months would be appropriate for the principal offender.11 Furthermore, it appears that the starting point took into account the appellant’s history of violent offending, as the Judge gave no discrete uplift for that factor. That too, reinforces the fact that the starting point was lenient.

[21]            I accept the victim impact statement is, in effect, fresh evidence and I consider it is in the interests of justice to admit it because, through an oversight, it was not available at the original sentencing. However, I also accept that there are aspects of the victim impact statement which should not be taken into account. For example, allegations about the circumstances of the offending, including the involvement of a firearm, which are not reflected in the summary of facts or the charge before the Court, cannot be relevant to sentencing, particularly when they are strongly denied.

[22]            The victim impact statement supports the fact that the assault was serious and resulted in the need for medical attention. However, the Judge was already aware of this from the summary of facts and I do not consider that the victim impact statement which is now available warrants an amendment to the sentence, whether to increase or decrease it.

[23]            In terms of whether there should have been a discount for time spent on recall, the Court of Appeal in Faulkner v R summarised the approach to sentencing where the offender has been subject to a recall order, saying:12

[16]      Under s 91(5) of the Parole Act 2002, pre-sentence detention is not automatically deducted [by Corrections] from the length of time to be served on a sentence of imprisonment if the offender was, during that detention, in custody and serving a sentence of imprisonment. Serving a sentence of imprisonment includes time spent in prison following an application for a recall order, but only if a final recall order is made.13

[17]      The general approach is that, where an offender would have been eligible for parole under the prior sentence of imprisonment in the absence of the remand in custody on the new charge/s or where an application for recall

11     Borell v Police [2014] NZHC 2422; Tangimataiti v Police [2018] NZHC 2291; Sadlier v Police

[2018] NZHC 993; and Williams v Police [2015] NZHC 3285.

12     Faulkner v R, above n 6.

13     Parole Act 2002, s 91(6).

is based on the new charge/s, the time spent on remand can be taken into account in fixing the length of the new sentence of imprisonment so as to avoid an element of double punishment.14 …

[24]            However, as Ms Dayal submitted, it will not usually be appropriate to discount the sentence by the total period the appellant spent in custody subject to recall. For example, in Tukuafu v R, the Court said that would “ignore that the present offending occurred while Mr Tukuafu was on parole and subject to release conditions”.15

[25]            Ms Barrell advised that the appellant has spent approximately three months and one week in custody subject to recall. In my view, at best, he could have received a net discount of around one month from the sentence for this offending to reflect both the time spent in custody on recall and the fact the offending occurred while on parole. However, Faulkner states that a discount will only be necessary where the total period served would be out of all proportion to the gravity of the offending.16 I do not consider this is such a case. As I have pointed out, the starting point adopted by Judge Garland was lenient in light of the seriousness of the appellant’s offending and his history of violent convictions. He was given the maximum discount for his guilty plea. In all the circumstances, it would have been open to the Judge to impose a slightly higher sentence than six months’ imprisonment and it is therefore unnecessary to allow a discrete discount for the time spent in custody subject to a recall.

[26]            In these circumstances, I am satisfied that the sentence of six months was not manifestly excessive, and the appeal is dismissed.

Solicitors:

Michelle Barrell & Associates, Christchurch Raymond Donnelly & Co., Christchurch

14     Tukuafu v R, above n 6, at [12]-[13].

15     Tukuafu v R, above n 6, at [13].

16     Faulkner v R, above n 6, at [23].