Lopeti v Police

[2015] NZHC 3209

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-488-000047 [2015] NZHC 3209

BETWEEN

FRANKIE LOPETI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	14 December 2015
Appearances:	Matthew Littlefair for the Appellant Michael Smith for the Respondent
Judgment:	15 December 2015

JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by me on 15 December 2015 at 11:30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

LOPETI v NEW ZEALAND POLICE [2015] NZHC 3209 [15 December 2015]

Introduction

[1]      Frankie Lopeti pleaded guilty to one charge of assault with intent to injure.

He was sentenced to four months’ community detention.

[2]      He now appeals that sentence.  He says that the sentence is inconsistent with other sentences imposed in the District Court for similar offending.   He says the starting  point  adopted  by the  Judge  was  too  high  and,  given  this  was  his  first conviction for violence, was attended by an early plea, an unequivocal expression of remorse and because he had already spent some 19 days in custody after having been denied bail, a considerably lower sentence was justified.

[3]      He  seeks  a  discharge  with  conviction  or  otherwise  an  order  that  he  be sentenced if called upon within the next 12 months.

Relevant facts

[4]      On the evening of 17 May 2015 Mr Lopeti was at the Pipi Patch Bar in Paihia.  The victim was also at the bar. As the victim was leaving the premises there was a brief exchange of words between the victim and Mr Lopeti.   Mr Lopeti punched the victim once in the head.  As the victim fell he tried to hit him several more times but these punches failed to connect.   As a result, the victim suffered bruising and swelling to the side of his face.

District Court sentencing

[5]      Mr Lopeti pleaded guilty to assault with intent to injure on the basis that the Crown would withdraw a considerably more serious charge of assault with intent to cause grievous bodily harm.   Mr Littlefair, for Mr Lopeti, advised that the more serious charge related to an entirely different incident which occurred on the same night involving a different complainant.   The sentencing Judge, while mentioning this fact, plainly did not take it into account in sentencing.   However, it was this more serious charge which resulted in Mr Lopeti being denied bail initially and following his release on bail with restrictive conditions.   Once this charge was withdrawn Mr Lopeti pleaded guilty to the present charge.

[6]      The Judge considered that Nuku v R was a relevant authority, although it did not directly apply, and that the various aggravating and mitigating factors listed in that authority had application to the present facts.1    His Honour concluded that the present assault would fall within band 1 of Nuku.2   He also considered the Court of Appeal’s decision in Tamihana v R which involved the same charge; assault with intent to injure.3

[7]      In Tamihana the defendant punched the victim and, once he was on the ground, kicked him.   In comparing the present facts with those in Tamihana the Judge considered that the present case was less serious.  Whereas a starting point of

12 months’ imprisonment was appropriate in Tamihana, the sentencing Judge considered that a starting point of 10 months was applicable in the present case.

[8]      From that starting point the Judge made various deductions in recognition of Mr Lopeti’s remorse, his willingness to engage in a restorative justice process and the length of time he had already spent in custody and later on bail awaiting resolution of the matters.  His Honour gave Mr Lopeti the benefit of a full guilty plea discount and thus arrived at a provisional sentence of six months’ imprisonment.

[9]      The Judge then turned to consider the appropriate form of sentence.  Given Mr Lopeti’s history of non-compliance with community sentences4  and given the seriousness of the charge his Honour concluded that a sentence of community work was inadequate.  However, he concluded that imprisonment was unnecessary and on that basis a sentence of four months’ community detention with an evening curfew was imposed.

Approach to appeal

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

1      Nuku v R [2012] NZCA 582, [2013] 2 NZLR 39.

2      For the applicability of band 1 of Nuku, see [19] below.

3      Tamihana v R [2015] NCA 169.

4      Between 2001 and 2006 Mr Lopeti was convicted of seven breaches of Court or other orders.

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

(b)      a different sentence should be imposed.

[11]     In any other case, the Court must dismiss the appeal.5

[12]     The  Court  of Appeal  in  Tutakangahau  v  R  has  recently  confirmed  that s 250(2) was not intended to change the previous approach taken by the Courts under the Summary Proceedings Act 1957.6  Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the Court’s approach to sentence appeals.7

[13]     The approach taken under the former Summary Proceedings Act was set out in R v Shipton:8

(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 appeal Court should re-exercise the sentencing discretion.

[14]     The High Court will not intervene where the sentence is 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.9

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

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

7      At [33], [35].

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

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

Submissions

[15]     Mr Littlefair, for Mr Lopeti, submits that the sentence imposed is manifestly excessive.  He says the same Judge, only a few weeks after sentencing Mr Lopeti, sentenced a first time offender for more serious conduct on the same charge to community  work.    Mr  Littlefair  thus  submits  that  the  present  sentence  offends against the principle of parity.  Mr Littlefair submits the only aggravating factor is the single blow to the head.   The other punches which did not connect do not aggravate the offending.  In this respect he distinguishes Tamihana.  Furthermore, he submits prison does not need to be the starting point and again emphasises his submission Tamihana is not a tariff case but in any event the offending was much more  serious  and  the  previous  convictions  considerably  more  extensive  than Mr Lopeti’s.

[16]     Finally, Mr Littlefair submits that insufficient credit was given for remorse and for the time Mr Lopeti had already spent in custody and later on restrictive bail conditions.

[17]     Mr Littlefair thus submits the sentence imposed should have been either: (a) time served;

(b)      conviction and discharge;

(c)       an order to come up for sentence if called upon; or

(d)      community work.

[18]     Mr Smith, for the Crown, submits the sentence was not manifestly excessive. He submits that the final sentence was available and well within the range available to the Judge.  He thus submits that the sentence was an appropriate response to the offending.

Analysis

[19]     The Judge correctly identified that Nuku does not apply directly to this kind of offending.  Nonetheless, the factors identified in Nuku are relevant to sentencing in this sort of case.   In particular, the present offending involved an attack to the head.  Plainly, such conduct is inherently very dangerous.  The Judge was correct to place this offending within band 1 of Nuku where:10

“The sentencing Judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge.”

[20]     I am also of the view that the Judge was correct to consider other Court of Appeal decisions in determining the appropriate starting point.   Tamihana was an appropriate reference point.   The facts of that case bear a fair and relevant resemblance  to  the  present.    It  is  a  reasonable  comparator  although  I  accept Mr Littlefair’s submission the facts in Tamihana are somewhat more serious.   On this basis I consider the Judge’s starting point of 10 months, while at the upper end of the available range, should not be displaced.

[21]     The discount of four months for remorse and an early plea is, in my view, unorthodox and entirely acceptable.  While the 25 per cent reduction for the guilty plea might, at first blush, appear generous, it is a discount which recognises that until the more serious charge was satisfactorily resolved it was appropriate for Mr Lopeti to maintain a plea of not guilty.  However, Mr Littlefair’s submission and the one, which in my view, carries the most weight is that the period Mr Lopeti spent in

custody on remand and the subsequent period in restrictive bail11  should have been

given more credit.   Mr Littlefair submits that 19 days spent in custody is the equivalent to almost a six week sentence of imprisonment and this factor should

have been given more weight.

10     R v Nuku above n 1 at [39](a).

11     Mr Lopeti spent three and a half months on bail after his release.  He was subject to a 12 hour curfew and other restrictive conditions.   He is a Japanese citizen and his principal place of residence is in Japan where he has a home and family.  He also works in Japan and as a result of his remand in New Zealand has been unable to run his business.

[22]     Section 82 of the Sentencing Act 2002 prohibits the Court from considering periods of detention when calculating a sentence of imprisonment.   This makes sense.  Time spent in custody is already accounted for under the Parole Act 2002. However, no such calculus is engaged where the defendant receives a community- based sentence.12  Thus a discount is available although in my view this is best considered as part of the evaluative step when the final sentence is converted into an electronically-monitored one.

[23]     Here, I consider that four months’ community detention would generally be an appropriate substitute for a six month sentence of imprisonment.   Indeed, as Mr Littlefair volunteered at the end of argument in normal circumstances a sentence of four months’ community detention “would be pretty fair”.  But this is not a normal situation and I agree with Mr Littlefair the sentence imposed does not give sufficient regard to the period which Mr Lopeti spent in custody and later on restrictive bail. As Mr Littlefair submits this was equivalent to a six week sentence of imprisonment and credit must be given for that fact.

[24]     Nonetheless, I consider that community detention remains the appropriate outcome.  For the same reasons the Judge rejected community work as an effective sentencing option I too reject that option.  While Mr Lopeti appears to have turned his life around since 2006 he cannot be treated as a first time offender.  Furthermore, his  history of  breaching  Court  and  other  orders  can  give  no  confidence  that  a sentence of community work would be complied with.

[25]    In the circumstances a one month reduction in the sentence imposed is appropriate.

Result

[26]     The appeal is allowed.

12     Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268; Laloni v  R [2015] NZCA 55 at [9]; R v

Ford [2008] NZCA 64 at [20].

[27]     A sentence of three months’ community detention is substituted.  The same

conditions as were imposed by the sentencing Judge remain.

Moore J

Solicitors:
Crown Solicitor, Whangarei

Mr Littlefair, Kaikohe