Jury v Police

[2015] NZHC 2587

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-37 [2015] NZHC 2587

IN THE MATTER	of an appeal against sentence
BETWEEN	DESI LEE JURY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	20 October 2015
Appearances:	E J Forster for the Appellant MJM Mitchell for the Respondent
Judgment:	20 October 2015

ORAL JUDGMENT OF MUIR J

Counsel:

E J Forster, Barrister, Hastings

Solicitors:

MJM Mitchell, Crown Solicitors, Napier

JURY v NEW ZEALAND POLICE [2015] NZHC 2587 [20 October 2015]

[1]      Mr Jury pleaded guilty to and was sentenced to three months’ imprisonment for one charge of doing an indecent act with intent to offend contrary to s 126 of the Crimes Act 1961.  The sentence was imposed cumulatively on a five month term of imprisonment   which   Mr  Jury  is   currently  serving  on   one  charge  each   of contravention of a protection order and male assaults female.  He was sentenced in relation to those charges on 5 August 2015 which is one day earlier than the events which gave rise to the charges under s 126.

Background facts

[2]      On 4 August 2015 Mr Jury was being interviewed by his lawyer who is the victim.  At the time he was in custody in relation to the charges of male assaults female and breach of the protection order.  The victim and Mr Jury were separated by a pane of glass.  The victim was reading a letter Mr Jury had written for the Court in relation to those earlier charges.  When she looked up she observed that Mr Jury had his hands inside his trousers and he then began to masturbate while watching the victim.  He stood up from the chair and continued masturbating.  The victim stopped reading the letter but was instructed by Mr Jury to continue to the next page.  Mr Jury continued with the activity described above and shortly after the victim ended the visit. The victim stated that she was shocked and disgusted by Mr Jury’s acts and she indeed took some time to process it.

[3]      The charges in relation to which the victim was visiting Mr Jury and on which he is currently serving his five month sentence arise out of events on 26 June

2015.  On that date Mr Jury was with his partner of 19 years in their home.  Mr Jury accused his partner of taking $200 which she denied repeatedly.  That enraged Mr Jury and he punched the victim on the left side of her face.  The victim began to cry and scream out for assistance.  Mr Jury told her to “shut her mouth”.  The victim sustained bruising to her left eye.  She reported the incident two days later.  Mr Jury was located by the Police on 2 August.  The sentencing notes on those charges have not been made available to the Court.

[4]      Mr Jury has a lengthy criminal history with, regrettably, multiple offences for male assaults female, failure to comply with Court orders and conditions, various

dishonesty offences, obstructing or perverting the course of justice, burglaries, a number of driving offences and minor drug trafficking.

The District Court’s decision

[5]      Judge MacKintosh noted the impact the offending had on the victim.   She also noted Mr Jury’s letter to the Court in relation to the s 126 offence in which he said  that  alcohol  was  a big factor  in  the offending.    She also  noted Mr Jury’s previous  history.    She  took  a  starting  point  of  five  months’ imprisonment  and reduced the sentence to three months on account of an early guilty plea and the letter of remorse.  The Judge considered that given the circumstances of the offending a cumulative sentence on the one already being served was warranted.

Grounds for appeal

[6]      Mr Jury’s only ground for appeal is that the Judge should have adjusted the end sentence to reflect principles of totality.  His counsel accepts that the sentence should be one that is cumulative.

Approach to appeal

[7]      Section 250(2) of the Criminal Procedure Act 2011 states the Court must allow the appeal if satisfied that:

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[8]      In any other case the Court must dismiss the appeal.1

[9]      The Court in Tutakangahau v R2  has recently confirmed that s 250(2) is not intended  to  change  the  previous  approach  by  the  Courts  under  the  Summary

Proceedings Act 1957 and further, despite s 250 making no express reference to

1      Criminal Procedure Act 2011, s 250(3).

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

“manifestly excessive”, this principle is “well engrained” in the Court’s approach to sentence appeals.3   The approach taken under the former Summary Proceedings Act is set out in R v Shipton4 in terms that:

(a)       There must be an error vitiating the lower Court’s original sentencing

discretion. The appeal must proceed on an error principle.

(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)       It is only if an error of that character is involved that the appeallant

Court should re-exercise the sentencing discretion.

[10]     Furthermore, the High Court will not interfere with sentences  within the range that can properly be justified by accepted sentencing principles.   Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.5

Apellant’s submissions

[11]     Mr Forster submits that the effect of the consecutive sentences would be crushing on the defendant.  He submits that cases where the Courts have refused to discount for totality in such circumstances usually have an additional policy element such as a strong need to emphasise deterrence or the subsequent offending occurred in prison.  He submits that even where the subsequent offending does occur in prison

reductions in totality are still regularly allowed.6

[12]     He says there is no compelling policy reason for totality not to be applied in the present case and a shorter sentence adjusted for totality would still have reflected

the relevant sentencing principles of deterrence and rehabilitation.

3 At [33]. [35].

4      R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

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

6      Kapa v R [2011] NZCA 504; Tryselaar v R [2012] NZCA 353.

The Crown’s position

[13]     The Crown opposes the appeal.   It submits that the cumulative sentence imposed by the Judge is not wholly out of proportion to the gravity of the offending. The Crown submits that a sentence of five months for male assaults female and breach of a protection order was in itself generous considering Mr Jury’s lengthy history of domestic violence against the same victim.  The Crown cites Williams v

Police, Pukepuke v Police and Waiwatai v Police7  in support of its submission that

such offending would typically attract a  starting point of between eight and 10

months’ imprisonment.

Discussion

[14]     Section 85 of the Sentencing Act provides:

85       Court to consider totality of offending

(1)       Subject to this section, if a court is considering imposing sentences of  imprisonment  for  2  or  more  offences,  the  individual  sentences  must reflect the seriousness of each offence.

(2)      If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)       If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4)       If only concurrent sentences are to be imposed,—

(a)       the  most  serious  offence  must,  subject  to  any  maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)       each  of  the  lesser  offences  must  receive  the  penalty appropriate to that offence.

7      Williams v Police [2014] NZHC 3255; Pukepuke v Police [2014] NZHC 1194; Waiwatai v

Police [2015] NZHC 406.

[15]     The principle of totality was, in my view, aptly summarised by Brewer J in R

v Neketai where he said:8

[24]     There is a principle of sentencing called totality.  That is to say, a Judge sentencing a person who is already serving terms of imprisonment has to look at the prisoner’s overall sentence position to make sure that the further sentence does not result in an unjust total.  In other words, the overall situation of imprisonment must not be disproportionate to the overall criminality.

[16]     When sentencing an offender for a subsequent offence, principles of totality may come into conflict with a need to be seen to do justice to the facts of the charge and the victims’ interests.  This is particularly so in a case like this where the other offending involved domestic violence. That dilemma was recognised by the Court of

Appeal in R v Repia in terms:9

However, the most significant problem in Repia's sentencing was the substantial sentence he was already serving, a situation which often places a subsequent  sentencing  Judge  in  a  dilemma.  If  the  Judge  imposed  a cumulative sentence in respect of the further offence, then because of the need to give effect to the totality principle often that sentence would not do justice  to  the  facts  of  the  charge,  and  a  victim,  not  understanding  the workings of the  principle, is left with a sense of grievance about what, standing alone, would be an inadequate sentence.

[17]     Those comments are in my view particularly apposite in circumstances where Mr  Jury’s  partner  can  expect  him  to  have  faced  serious  consequences  for  the offences for which he was sentenced on 5 August 2015.

[18]      To resolve that dilemma, the Court of Appeal suggested in Opetaia v R that one method is to consider what the appropriate end sentence would have been if the offender had to be sentenced in respect of both sets of offending at the same time.10

That approach was also adopted by Peters J in R v Koteka.11   It is an approach which

I consider appropriate in the present case.

8      R v Neketai [2015] NZHC 396.

9      R v Repia CA201/96, 27 February 1997.

10     Opetaia v R [2013] NZCA 434 at [33].

11     R v Koteka [2014] NZHC 2727 at [31] to [36].

Analysis

[19]     To  succeed  on  appeal,  Mr Jury therefore has  to  satisfy me  that  the end sentence was manifestly excessive in the sense that it was wholly out of proportion to the overall gravity of the total offending.

[20]     The total term of imprisonment Mr Jury must face is eight months.  I do not consider that term disproportionate to the overall criminality.  In respect of the male assaults female charge and the breach of a protection order, I accept Ms Mitchell’s submission that, in light of the lengthy history of domestic violence toward the same victim, a starting point of between eight and 10 months would have been within range.   I consider Mr Jury to have been dealt with leniently in relation to those charges.

[21]     In respect of the indecent act charge, I would have adopted a starting point of four or five months similar to that adopted by the District Court.   In stating that proposition  I rely on  Walker v Police.12     There  the defendant was subject  to a protection order against his former partner.   While visiting her to request her to remove the order, the defendant exposed himself to her and asked her if she “wanted some”.   On appeal the Court upheld the starting point and end sentence of three

months’ imprisonment for that charge.  This case is more serious because it involved a sexual act, it was committed in front of a stranger, and it was committed while the offender was on remand.   A discount for remorse and guilty plea does of course apply, resulting in a sentence of approximately three months’ imprisonment against the starting point I have identified.

[22]     It is true that the District Court Judge did not expressly turn her mind to the totality principle.  However, I find that the total amount of time Mr Jury has to serve is not out of proportion to his overall criminality, and if he were to be sentenced on both sets of charges on the same day, a similar total sentence would have been

imposed.

12 Walker v Police HC Auckland CRI-2004-404-362, 17 August 2005.

Result

[23]     I dismiss the appeal.

Muir J