Nuku v Police
[2020] NZHC 1767
•22 July 2020
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2020-443-13
CRI-2020-443-14 [2020] NZHC 1767
JASMINE NUKU v
NEW ZEALAND POLICE AND
DEPARTMENT OF CORRECTIONS
Hearing: 21 July 2020 via AVL Appearances:
K Pascoe for Appellant
G N Milne for Respondent
Judgment:
22 July 2020
JUDGMENT OF CLARK J
Introduction
[1] On 25 May 2020 Ms Nuku was sentenced1 to four months’ community detention on one charge of assaulting a constable,2 and to 80 hours’ community work on one charge each of breaching supervision3 and breach of community work.4
[2] Ms Nuku appeals against sentence. She contends the sentence is manifestly excessive in that the Judge:
1 New Zealand Police v Nuku [2020] NZDC 12574 [Sentence decision].
2 Crimes Act 1961, s 192(2).
3 Sentencing Act 2002, s 70(a).
4 Section 71(1)(a).
NUKU v NEW ZEALAND POLICE [2020] NZHC 1767 [22 July 2020]
(a)imposed a sentence combination that was excessive in length and unreasonable having regard to all the circumstance;
(b)failed to have regard to the deterrent and denunciation aspects inherent in a sentence of community detention; and
(c)erred in imposing disproportionate community detention hours in excess of the maximum per week.
The offending
Assault charge
[3] The charge of assaulting a police officer arose out of an incident in the early hours of 3 February 2019. Ms Nuku was at a residential address in New Plymouth. She was intoxicated, and yelling at and biting her friends who were trying to help her. Eventually Ms Nuku was placed under arrest, handcuffed and walked to the patrol car. A police officer aided Ms Nuku into the rear seat. As she was passing the seatbelt to another officer to secure it, Ms Nuku swivelled in her seat, lifted her leg and kicked the officer once in the face. The officer suffered swelling and soreness to the bridge of her nose but did not require medical attention.
[4] On 17 September 2019 in the New Plymouth District Court, Judge Hikaka sentenced Ms Nuku to six months’ supervision and 60 hours’ community work on the assault charge.
Non-compliance and breaches
[5] Between 18 September 2019 when the rules and requirements of her sentence of supervision were explained to her, and 24 January 2020 when the probation officer made an application to cancel and substitute the sentence of supervision, Ms Nuku had failed to report on 12 occasions.
[6]In relation to the 60 hours community work Ms Nuku failed to report within
72 hours of sentencing. The requirements were explained to Ms Nuku on
24 September 2019 and she acknowledged her understanding of her obligations and the consequences of non-compliance.
[7] To accommodate her childcare requirements, Ms Nuku was given the opportunity to complete her hours at an agency placement. However, after failing to report on a number of occasions in October and November 2019, the placement was cancelled and Ms Nuku was directed to report to New Plymouth community work centre on Wednesday 20 November at 8 am and every week thereafter unless otherwise advised.
[8] Ms Nuku failed to report on 20 November 2019. She reported in on only two occasions after her sentence commencement date. Numerous warnings were issued including a final warning that was hand delivered to Ms Nuku’s address. The probation officer reports that attempts were made to engage Ms Nuku and home visits were attempted but no one was present.
[9] Ms Nuku advised the writer of the PAC (Provision of Advice to Courts) report that the main reason for her non-compliance was childcare commitments but was unable to explain why she did not communicate the childcare barriers to Community Probation. The report writer assessed Ms Nuku’s “offending related factors” as “lifestyle and poor attitude towards community based-sentences and Court orders”.
Decision under appeal
[10] The application to cancel and substitute the sentence of supervision before Judge Greig on 25 May 2020 was made on the grounds Ms Nuku responded poorly to the sentence of supervision having failed to report on 12 occasions, and that not having complied with the conditions of sentence she was assessed as unsuitable for such a sentence.
[11] Judge Greig’s notes of sentence are brief. He began by observing the seriousness of the charge of assaulting a police officer in relation to which Ms Nuku received a “reasonably light sentence” but that she had not met any of the conditions
of supervision and had “not done much” of the community work.5 The Judge commented that attending a probation interview drunk or intoxicated tended to reflect Ms Nuku’s attitude to the process so “things are going to get more serious”.
[12]The essence of the decision is in the following paragraph:
[3] The sentence is four months’ community detention and 80 hours’ community work and I am marking the record that if you do not perform this community work you are probably going to go to prison, it is a final warning. You are going to do this sentence. You have made it worse to date, it is going to keep getting worse if you do not do it, so just get on with it please. That is therefore your sentence.
[13] An appeal against sentence is an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.6 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.7
[14] The Court of Appeal has explained that whether a sentence is “manifestly excessive” continues to be an important guide to finding an error and that:8
The discretion to vary [a] sentence [on appeal] is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an “error principle”.
Submissions
Ms Nuku
[15]Ms Nuku’s position is that the Judge:
(a)imposed a sentence combination that was excessive in length and unreasonable having regard to all the circumstances;
5 Sentence decision above, n 1 at [1].
6 Criminal Procedure Act 2011, s 250(2); Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
7 Ripia v R [2011] NZCA 101 at [15].
8 Tutakangahau v R, above n 2, at [29], citing R v Shipton [2007] 2 NZLR 218 (CA) at [138].
(b)failed to have regard to the deterrent and denunciation aspects inherent in a sentence of community detention; and
(c)erred in imposing disproportionate community detention hours when regard was had to the charge of assault on Police and review of sentence.
[16] On behalf of Ms Nuku, Ms Pascoe submitted that the original sentence of six months’ supervision and 60 hours’ community work was well within the sentencing range for the Crimes Act charge. When Ms Nuku did not comply with that sentence the Judge was required to consider how that sentence should be reflected in a sentence of community detention with an appropriate adjustment to recognise the breaches of community work and supervision.
[17] Counsel submits the Judge wrongly focused on punishing Ms Nuku for failing to comply with her sentence.
[18] The consequence, it is said, is that the Judge imposed a sentence for the breaches in excess of the community work period initially imposed in relation to the Crimes Act charge, making it manifestly excessive.
Respondent
[19] Counsel for the respondent submits the sentence of four months’ community detention for the assault charge was clearly within the available range. The offending was similar to that in Freer v New Zealand Police where the Court upheld as justified a sentence of four months’ community detention and 18 months’ intensive supervision.9
[20] Ms Milne submitted a cumulative sentence with a corresponding punitive element was clearly justified for the distinct offences of breaches of supervision and breach of community work.
9 Freer v New Zealand Police [2019] NZHC 337. The assault of the police officer was the lead charge, but there were also charges of intentional damage, breaching District Court bail, shoplifting and resisting arrest.
Discussion
[21] Ms Pascoe’s primary concern is that the consequence of the District Court’s review of sentence was that the sentence of four months’ community detention involved an elevation in the hierarchy of sentences. In other words, where the sentence of community work was at “tier 4” of the hierarchy of sentences, Ms Nuku has been placed at “tier 3” with the imposition of the sentence of community detention.
[22] There is no doubt that Ms Nuku’s sentence of community detention is more restrictive than the sentence of community work and supervision to which she was originally subject. But I do not consider this makes the sentence manifestly excessive. Ms Pascoe submitted there was no argument from counsel at the time of sentencing that they were “in the realms of community detention”. Ms Pascoe said the concern at that time was to avoid a sentence that would set Ms Nuku up for failure or a continuation of her non-compliance. In that regard I note from the court file that Ms Nuku acknowledged to the PAC report writer that while she had been non- compliant in relation to her previous sentences, she identified no barriers to successfully completing a sentence of community detention.
[23] An updated memorandum for the Court providing additional information for Ms Nuku’s sentence on 7 April 2020 records Ms Nuku’s signed consent to compliance with conditions of an electronic monitoring sentence, and standard and special conditions and proposed curfews, should a sentence of community detention or home detention be imposed.
[24] There being no element of surprise as to the imposition of this sentence I turn to counsel’s concern that the Judge wrongly focused on punishing Ms Nuku for failing to comply with the original sentence.
[25] This case has analogies with Smith v New Zealand Police, a case involving breaches of community work and supervision.10 Lang J held:
Mr Smith has shown extremely poor judgment in failing to comply with the sentences of supervision and community work. His actions go beyond being
10 Smith v New Zealand Police [2014] NZHC 2896 at [13].
negligent, and must be regarded as deliberate. As the Judge observed, any sentence must necessarily have a significant deterrent factor.
[26] Ms Nuku has not shown the District Court Judge erred in his approach to sentencing or in the sentence imposed and that, therefore, the intervention of this Court is justified.
[27] The sentence of six months’ supervision was substituted with a sentence of community detention but for a lesser period. The sentence of 60 hours community work was substituted with a sentence of 80 hours community work. On a charge of assaulting a police officer a sentence of four months’ community detention combined with a sentence of community work is not excessive. The additional 20 hours imposed contains a punitive element for failing to comply with the conditions of sentence but, as Lang J held in Smith v New Zealand Police a sentence for such failures to comply must necessarily have a significant deterrent factor.
Result
[28] The appellant has not shown the sentence to be manifestly excessive. It was within the available range and consistent with the Sentencing Act’s principles of denunciation and deterrence.11
[29]The appeal is dismissed.
Karen Clark J
Solicitors:
Nicholsons Lawyers, New Plymouth, for Ms Nuku Crown Solicitor, New Plymouth for Respondent
11 Sentencing Act 2002, s 7.
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