Natua v The Queen

[2018] NZHC 3278

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000345

[2018] NZHC 3278

BETWEEN

LUKE NATUA

Appellant

AND

THE QUEEN

Respondent

Hearing:	11 December 2018
Counsel:	J Verry for Appellant HG Max for Respondent
Judgment:	12 December 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 12 December 2018 at 4 pm.

Registrar/Deputy Registrar

Solicitors/Counsel: J Verry, Auckland.

Crown Law, Wellington.

NATUA v R [2018] NZHC 3278 [12 December 2018]

The appeal

[1]    Judge J Jelas sentenced Mr Luke Natua to a term of two years and two and a half months’ imprisonment.1 Mr Natua supplied methamphetamine, offered to supply that drug, unlawfully possessed a firearm and ammunition, received stolen property, and assaulted Police. Mr Natua appeals. He contends the sentence is manifestly excessive. Attention is invited to the starting point and totality principle.

Background

[2]    On 9 August 2017, Mr Natua’s associates robbed two victims of their Ford Mondeo. The offenders wielded a sawn-off .22 rifle. Mr Natua received the Mondeo the next day. And the rifle. On 21 August 2017, Mr Natua was stopped by the Police. The rifle was in his car—loaded. Over the preceding three weeks, Mr Natua had dealt methamphetamine at street level. The precise amount of drug remains unknown, but was likely less than five grams. Mr Natua appeared in Court on 22 August 2017 (the day after his arrest). He was remanded in custody. Mr Natua refused to leave the dock. He twice kicked a male Police officer, including to the groin. Mr Natua also attempted to headbutt the officer.

[3]    Judge Jelas adopted a starting point of two years’ imprisonment for the methamphetamine offending. The Judge increased the starting point by 15 months for the firearms offending and receipt of stolen property. Discounts for personal circumstances and guilty pleas left a sentence of two years’ imprisonment, to which the Judge added two and a half months for the in-court assault on the Police officer.

The global starting point

[4]    Mrs Verry takes no issue with the starting point of two years for the drugs offending, but contends the global starting point of 39 months’ imprisonment was too high. Mrs Verry submits if the firearms and receiving offending had occurred without any other offending, a starting point of 15 months would be manifestly excessive.2

1      Police v Natua [2018] NZDC 22361.

2      Mrs Verry placed little weight on this point at the hearing.

[5]    Case law addresses this submission. Byles v R involved similar offending: a sawn-off. 22 rifle was found in a car during a search.3 The Court of Appeal upheld a starting point of two years’ imprisonment. In Dewes v Police, the High Court upheld a starting point of two and a half years’ imprisonment for possession of a sawn-off shotgun.4 As here and in Byles, the gun was found in a car.

[6]    Two other High Court decisions are relevant. In Head v Police, a two-year starting point was upheld in relation to a loaded shotgun, cartridges and a crossbow.5 And, in Herewini v Police, a two and a half-year starting point was “well within the Judge’s discretion” in relation to a sawn-off shotgun under the front passenger seat, two knives and a crossbow.6

[7]    Judge Jelas was concerned not just with Mr Natua’s possession of a loaded gun, but also his recent possession of a stolen car taken by his associates at gunpoint. An uplift of 15 months was easily reached.

The assault on the Police officer

[8]    Mrs Verry observes offending of this nature can attract a concurrent sentence and should have, particularly given the totality principle. She contends the overall sentence is manifestly excessive.

[9]    Assaulting a Police officer in the execution of duty significantly aggravates penalty, a factor recognised by both the Legislature7 and Courts.8 Consequently, denunciation and deterrence are pre-eminent considerations. While Mrs Verry is correct such offending can result in a concurrent sentence, her cited example—       R v Duthie—is a reminder if this happens, the global starting point must be increased.9 Mr Duthie dealt drugs and shot (twice) at a Police officer. The drug offending attracted a starting point of eight years’ imprisonment, which Stevens J increased by five years for Mr Duthie’s use of a firearm against a Police officer.

3      Byles v R [2013] NZCA 18.

4      Dewes v Police HC Christchurch A60/03, 12 June 2003.

5      Head v Police [2017] NZHC 1733.

6      Herewini v Police [2014] NZHC 2396 at [28].

7      Sentencing Act 2002, s 9(1)(fa).

8      For example, see R v Thomas (2003) 20 CRNZ 538 (CA).

9      R v Duthie HC Rotorua CRI-2006-070-5847, 28 August 2008.

[10]   Judge Jelas did not identify a starting point for the assault. But, if one assumes that starting point attracted the same level of discount for mitigating features (38 percent), it would have been four months.

[11]   Barnes v Police is apposite.10 Mr Barnes repeatedly kicked a Police officer while intoxicated. Like the instant victim, Mr Barnes suffered pain but was not injured. Ronald Young J quashed a sentence of six months’ imprisonment, and substituted a cumulative three-month term. In R v Taurere, Wylie J noted “medium gravity assaults such as kicking and head-butting” tend to attract starting points of one to a few months, depending on context.11

[12]   All this suggests the Judge’s starting point was unremarkable. Mr Natua repeatedly kicked the victim, including to the groin, and attempted to headbutt him— in court. So too, as discussed, the other components of the starting point.

[13]   The totality principle did not require an amelioration of the global starting point of 43 months’ imprisonment for the simple reason it was not disproportionately severe. Mr Natua committed  a  host  of  distinct  and  serious  offences  between  10  and  22 August 2017. A final feature cements this analysis. Mr Natua has a bad record, including a history of violence. The Judge did not uplift the sentence, even though she might have.

[14]   Mrs Verry notes the imposition of a minimum term has parole ramifications for Mr Natua, because a sentence of two years or less would have resulted in release after a half. But, as Ms Max observes for the Crown, as a “general rule a sentencing court will not take into account considerations based upon parole eligibility”.12 This principle was expressly approved in Lord v R, in which the appellant sought to have a long-term sentence substituted for a short-term sentence, in order to guarantee his

10     Barnes v Police HC Palmerston North CRI-2006-454-3, 7 February 2006.

11     R v Taurere HC Whangarei CRI-2011-488-30, 7 July 2011 at [25].

12 Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49 at [65]. This general position was discussed and explained by the Court of Appeal in R v Stockdale [1981] 2 NZLR 189 (CA). See also R v Mwai [1995] 3 NZLR 149 (CA); R v Smith CA310/94, 19 December 1994; R v Staynor CA31/96,      7 August 1996; and Tutahi v Police [2014] NZHC 3354. Exceptions to this rule may be made in respect of offenders being sentenced for their second strike: Barnes at [79]; and Elliott v R [2018] NZCA 526 at [21].

release after serving half the sentence.13 The Court of Appeal dismissed the appellant’s argument, confirming that parole consequences are generally irrelevant to sentencing:14

... We are sure that [the sentencing Judge] was well aware of the consequences of a sentence of two years two months in terms of the Parole Act 2002. It is commonplace for the sentencing issue to be whether the term of imprisonment should be less than two years. Generally parole consequences are irrelevant to sentencing.

Result

[15]The appeal is dismissed.

……………………………..

Downs J

13     Lord v R [2012] NZCA 276.

14 At [24].