Meads-Petley v Police
[2021] NZHC 1724
•9 July 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2021-463-000067
[2021] NZHC 1724
BRAIDEN STEFAN MEADS-PETLEY v
NEW ZEALAND POLICE
Hearing: 8 July 2021 Appearances:
C Treanor for the Appellant
G Banuelos for the Respondent
Judgment:
9 July 2021
JUDGMENT OF WALKER J
This judgment was delivered by me on 9 July 2021 at 4 pm Registrar/Deputy Registrar
BRAIDEN STEFAN MEADS-PETLEY v NEW ZEALAND POLICE [2021] NZHC 1724 [9 July 2021]
Introduction
[1] Mr Meads-Petley appeals his sentence of 21 months’ imprisonment imposed on 13 May 2021 in the Rotorua District Court in respect of the following charges:
(a)behaving in a disorderly manner;1
(b)wilful damage;2
(c)operating a motor vehicle carelessly;3
(d)driving a motor vehicle with evidence of a controlled drug in his blood;4
(e)driving whilst disqualified;5
(f)assaulting a police officer;6
(g)failing to answer bail;7
(h)breaching prison release conditions.8
[2] Mr Meads-Petley contends that the Judge erred by adopting a starting point for the lead charge of assaulting a police officer which was too high and uplifts for the remaining charges which were also too high. The notice of appeal was filed one working day out of time as there was difficulty arranging contact with Mr Meads- Petley at Waikeria Prison. The respondent does not oppose leave. I grant leave to appeal accordingly.
1 Summary Offences Act 1981, s 4(1)(a): carrying a maximum penalty of a $1,000 fine.
2 Section 11(1)(a): carrying a maximum penalty of three months’ imprisonment or a $2,000 fine.
3 Land Transport Act 1998, s 37(1): carrying a maximum penalty of a $3,000 fine and the court may order that the person is disqualified from holding or obtaining a driver licence for such period as it thinks fit.
4 Section 58(1)(b): carrying a maximum penalty of three months’ imprisonment or a $4,500 fine.
5 Section 32(1)(a): carrying a maximum penalty of three months’ imprisonment or a $4,500 fine.
6 Crimes Act 1961, s 192(2): carrying a maximum penalty of three years’ imprisonment.
7 Bail Act 2000, s 38(a): carrying a maximum penalty of one year imprisonment or a $2,000 fine.
8 Sentencing Act 2002, s 96(1): carrying a maximum penalty of one year imprisonment or a $2,000 fine.
Background
[3]The offending is in respect of various incidents.
2 September 2020
[4] The appellant had been admitted to hospital for the past 13 days for stomach surgery.
[5] On 2 September 2020, he woke to a nurse conducting regular routine vital sign checks. He became agitated. He threw a television remote into the corridor causing it to smash along with patient files and paperwork.
[6] The appellant walked off down the corridor in an agitated and aggressive manner. He threatened staff, challenging them to take him on, referring to fighting. He was subsequently restrained by hospital security.
[7] After calming down and being released by security, the appellant kicked a door causing the glass panel to smash. He then picked up a metal IV like pole and began swinging it around, striking walls and doors and damaging the metal pole.
[8] The appellant was ushered out of the hospital where he was located by Police in an agitated state. No nurses or hospital staff were hurt as a result of the incident but they were frightened. This gave rise to the charges of disorderly behaviour and wilful damage.
3 September 2020
[9] On 12 March 2020, the appellant was disqualified from holding a driver’s licence in the Tauranga District Court.
[10] On 3 September 2020, the appellant drove a motor vehicle on Koreke Place in Tokoroa. The road was dry and well-lit by sunshine. It had a posted speed limit of 50 kilometres per hour. The appellant was driving in a manner which caused his vehicle
to collide with the opposite curb, causing the vehicle to roll and come to a stop on its side.
[11] The appellant was treated following the traffic crash. A blood sample showed evidence of the controlled drug methamphetamine, cannabis and Diazepam. The vehicle was extensively damaged in the crash and the appellant sustained injuries to his wrist which required surgery.
[12] This gave rise to the charges of driving whilst disqualified, careless driving and driving with blood containing evidence of use of a controlled drug.
14 November 2020
[13] On 13 October 2020, the appellant was released on court bail from Rotorua to appear in the Hamilton District Court on 28 October 2020 at 9.00 am. He failed to appear.
[14] On 14 November 2020, Mr Meads-Petley was located by Police on a street in Huntly, acting aggressively and making threats. He was arrested. Due to his behaviour, he was transported to the Hamilton custody unit for processing.
[15] The complainant is a police constable and was working in full Police uniform at the Waikato District Custody Unit.
[16] Mr Meads-Petley was put into a Police issued restraint chair because of his agitated state. This was to prevent self-injury as the appellant was thrashing about in the cell area, abusing and threatening Police staff. A couple of Police staff restrained him. The complainant was controlling the appellant’s head to prevent injury. Threatening to spit at Police, he was placed in a protective hood (also known as a spit hood). He thrashed aggressively, turning the spit hood, causing only mesh to cover his mouth. Seizing the opportunity, he spat a mouthful of bloodied saliva directly upwards, hitting the complainant in the face.
[17] The bloodied spit covered the complainant’s face, causing saliva and blood to go into his eyes. The complainant had to undergo blood tests due to the risk of
infection for HIV, HepB and HepC. He had to wait for three months for his next blood test to determine whether he had contracted anything. I apprehend this has to be repeated.
[18] This gave rise to the charges of failing to answer District Court bail and assaulting a police officer.
9 December 2020
[19] On 13 May 2020, the appellant was released on conditions from Waikeria Prison.
[20] On 9 December 2020, the appellant breached a standard condition of his sentence in that he failed, without reasonable excuse, to report to a probation officer as directed.
[21]This gave rise to the charge of breaching prison release conditions.
District Court decision
[22] The Judge stated that it was “crystal clear” that Mr Meads-Petley had been heavily under the influence of drugs and alcohol in relation to most of the offending. He had been deported from Australia and was separated from his primary family, which was also a factor in the offending. His Honour adopted a starting point of 18 months in relation to the spitting of bloodied saliva into the eyes of a police officer. He considered that the “bare minimum”. On the basis of totality, he then imposed an uplift in the order of “nine or 10 months” for the balance of the offending. In recognition of the appellant’s age, circumstances and guilty plea he came to an end sentence of 21 months’ imprisonment.
[23] The Judge accordingly sentenced Mr Meads-Petley to 21 months’ imprisonment on the charge of assault. He acknowledged that there is a reasonable chance that if his alcohol and substance abuse problems were addressed, he may be able to avoid offending in future. To that end, he gave leave to apply for substitution of the sentence to a full-time residential rehabilitation program.
[24] On the charges of driving whilst disqualified and driving with evidence of a controlled drug in his blood, Mr Meads-Petley was convicted and sentenced to imprisonment for a period of one month in respect of each charge. These sentences were to be served concurrently. Again, the Judge granted leave to apply for substitution of the sentence on the same terms. The appellant was also disqualified from holding or obtaining a driver’s licence for six months and ordered to pay reparation of $668.94.
[25] On the charges of intentional damage, failing to answer bail and breach of release conditions, the appellant was convicted and sentenced to two months’ imprisonment for each with leave to apply for substitution granted. These sentences were to be served concurrently.
[26] On the charges of disorderly behaviour and careless driving, the appellant was convicted and discharged.
[27]This resulted in a net sentence of 21 months’ imprisonment.
Approach on appeal
[28] To succeed on an appeal against sentence an appellant must satisfy the appeal court that the judge has made an error in the imposition of the sentence and that a different sentence should be imposed.9 In all other cases, the court must dismiss the appeal.10
[29] In this respect, the court will not simply substitute its own view for that of the original sentencing judge.11 If the sentence is within the range that can properly be justified by accepted sentencing principles, the court will typically dismiss the appeal.12 It will only intervene if the sentence is manifestly excessive or wrong in
9 Criminal Procedure Act 2011, s 250(2).
10 Section 250(3).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
12 At [36].
principle.13 The appeal court’s focus in this respect will be on the final sentence imposed rather than the process by which that sentence was reached.14
Submissions
[30] Ms Treanor, for the appellant, submits that the starting point adopted in respect of the lead charge of assaulting a police officer was too high when compared to other like cases. She refers in particular to the decisions in Freer v New Zealand Police and Kumar v New Zealand Police.15
[31] Ms Treanor acknowledges that spitting on a police officer is a particularly serious form of assault on a police officer. However, she submits that there are similarities between the present case and the decision in Freer as both involve similar risks in terms of the transference of bodily fluids in the context of a determined effort to assault a police officer. She accepts that the offending in Kumar was less serious than the present offending (which I take to mean in terms of effect because the spitting did not reach the target). She submits that a starting point of 12 months’ imprisonment was within range.
[32] With respect to the uplift of nine or 10 months applied to reflect the remaining charges, Ms Treanor submits that this too was excessive. She notes that the charges of driving while disqualified and driving with evidence of a controlled drug in his blood were the appellant’s first charges of that kind. He has no previous convictions for driving while impaired or driving with excess blood alcohol. He has one previous conviction for dangerous driving. Ms Treanor submits that if these matters were considered on their own, either a fine or community work would have been imposed with the mandatory disqualification. Given that a sentence of imprisonment had been appropriate, she submits that a starting point of one month imprisonment would have
13 At [30]–[35]. See also Te Aho v R [2013] NZCA 47 at [30].
14 Tutakangahau, above n 11, at [36].
15 Freer v New Zealand Police [2019] NZHC 337: appeal against sentence of eight month’s imprisonment for charges including assaulting a constable in the form of biting the constable on the hand. Held that a starting point of six months on that lead charge was too high and a start point of four months substituted. In Kumar v New Zealand Police [2014] NZHC 1659, Mr Kumar appealed against a sentence of 12 months’ imprisonment for resisting Police, two charges of assaulting a constable with intent to obstruct and breach of home detention conditions. The assault included spitting blood at the constables. Held the starting point of 10 months’ imprisonment was clearly excessive. A sentence of four month’s imprisonment was substituted.
been appropriate to reflect these charges. Taken together with the other charges, she submits that a total uplift of three months’ imprisonment would have appropriately reflected the gravity of the remaining charges.
[33] Ms Banuelos, for the Crown, responsibly accepts that the sentence imposed was stern and does not seek to support the starting point on the lead charge. She submits that the offending was more serious than both Freer and Kumar. It was also more serious than Dockerty v Police.16 In Dockerty, an overall starting point of nine months’ imprisonment “could not be criticised” for Mr Dockerty assaulting his female partner, spitting in the face and head of a police constable during the course of an arrest and biting one of the sergeants on the arm.17 However, Dockerty was a charge brought under the Summary Offences Act 1981 and accordingly attracted a maximum sentence of only six months’ imprisonment.
[34] Ms Banuelos points out that in the present case the uplifts imposed by the District Court Judge covered more than just the remaining offences. The driving offences were particularly serious with the appellant driving not only while under the influence of methamphetamine, cannabis and Diazepam, but ultimately causing his vehicle to collide with a curb and roll onto its side. There were also aggravating features: the offending occurred while Mr Meads-Petley had been subject to release conditions; and he had relevant previous convictions including dangerous driving, failing to stop, assaulting a police officer and speaking threateningly, all committed in 2019.
[35] Taking these factors into account, Ms Banuelos submits that an uplift of nine months’ imprisonment was appropriate for denunciation and deterrence.
Discussion
[36] There are two aspects to this appeal. First, whether the starting point of 18 months’ imprisonment was too high. Secondly, whether an uplift of nine or 10 months’ imprisonment was too high.
16 Dockerty v Police [2012] NZHC 2500.
17 At [11].
[37] I accept Ms Treanor’s submission that the starting point of 18 months’ imprisonment for the lead offence was out of step with comparator cases.18 This is not to minimise the offending which was aggravated by the long term impacts of spitting bloodied saliva, but consideration of the cases referred to me by counsel indicates to me that a starting point of 14 months’ imprisonment is more appropriate. This reflects the fact that the saliva was bloodied at the time and that he spat directly at the constable’s face, warranting a higher starting point than, for example, Kumar where the appellant merely spat at the constable’s trousers.
[38] I also consider that the uplift reflecting the balance of the offending was too stern in the circumstances. I acknowledge Ms Banuelos’s submission that this uplift was to reflect more than merely the remaining charges. I agree that offending while subject to release conditions and the relevant previous convictions must be recognised. In particular, the convictions for dangerous driving, failing to stop, assaulting a police officer and speaking threateningly, all from 2019, are plainly relevant in this regard. I consider that an uplift of six months’ imprisonment would have been sufficient in the circumstances.
[39] It is not clear precisely what discount was allowed by the District Court Judge for the appellant’s age, personal circumstances and guilty pleas. I consider it most likely that an uplift of 10 months was applied for the balance of the offending and that the Judge allowed discounts of 25 percent for mitigating factors. I do not propose to disturb those discounts. In the circumstances, adopting a starting point of 14 months rather than 18 months’ imprisonment, applying an uplift of six months and discounts of 25 per cent, results in an end sentence of 15 months’ imprisonment.
18 R v Taurere HC Whangarei CRI-2011-488-000030, 7 July 2011 citing at [25], n 4: Taiapa v R [2011] NZCA 48 (three months for assaulting a prison officer); R v Chiyabi [2008] NZCA 10 (three months for head butting a Police Officer); Cooper v Police HC Auckland CRI 2009-404- 261, 9 November 2009 (one month imprisonment for kicking an officer in the chest and lower body); Einan v Police HC Hamilton CRI 2005-419-20, 23 February 2005 (seven days’ imprisonment for spitting at a Police Officer); Gurney v Police HC Auckland AP116/96, 26 November 1996 (three months’ periodic detention for kneeing a Police Officer in the groin and two months’ periodic detention for biting a Police Officer’s hand); Wall v R [2010] NZCA 494 (12 months’ intensive supervision for spitting at a Police Officer); Rameka v Police HC Whangarei CRI 2010-488-050, 3 December 2010 (150 hours’ community work for assault Charge, no details given); Waata v Police HC Nelson AP10/02, 27 June 2002 ($400 fine for pushing a Police Officer).
Result
[40]The appeal is allowed.
[41] The sentence of 21 months’ imprisonment is quashed. A sentence of 15 months’ imprisonment is substituted in its place.
[42] It was not advanced by counsel in argument nor do I propose to alter the Judge’s decision to grant leave for substitution of the sentence for a full-time residential rehabilitation program. The Judge’s perception that Mr Meads-Petley’s offending is fuelled by drug and alcohol abuse, and his effort to incentivise him to address it, is motivated by regard for this young man’s future. I see Mr Meads-Petley as displaced by his removal from his primary family at a relatively young age through deportation, without sufficient support and absent any purpose. Rehabilitative intervention is needed both to treat his drug and alcohol dependency and to provide him with some opportunity to turn things around. I note that his grandmother has offered post release support.
[43] This sentence remains subject to the standard and special release conditions contained in the pre-sentence report as recorded in the District Court judgment.
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Walker J
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