Padgett v Police

[2017] NZHC 2818

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-133

CRI-2017-409-134 [2017] NZHC 2818

BETWEEN

JOHN PADGETT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	16 November 2017
Appearances:	J D Lucas for the Appellant D Matthews for the Defendant
Judgment:	16 November 2017

JUDGMENT OF MANDER J

Introduction

[1]      Mr Padgett was sentenced to an effective term of two years and two weeks imprisonment on charges of injuring with intent to injure, unlawful possession of ammunition, possession of a cannabis pipe and disorderly behaviour likely to cause violence.1   He appeals that sentence on the grounds it is manifestly excessive.

The offending

[2]      In December 2016, Mr Padgett was found intoxicated in central Timaru.  He was given a ride to his accommodation at a backpackers by Police. On his arrival, the

manager of the backpackers asked him to leave due to his intoxication and his failure

1      Police v Padgett [2017] NZDC 22409.

to pay for his stay. Upon leaving he lunged at the owner, pushing him in the chest and verbally abusing him.   After being separated by Police, Mr Padgett continued to threaten harm to, and yell obscenities at, the owner. He was charged with disorderly behaviour likely to cause violence. A cannabis pipe was also found in his pocket and he was charged accordingly.

[3]      In February 2017, Mr Padgett was at a friend’s house drinking alcohol. His friend was apparently asleep, lying on the couch, when Mr Padgett produced a flick- knife and slashed the top of his friend’s hand, cutting him once. The victim was hospitalised and required stitches.

[4]      Mr Padgett was arrested for the knife incident in April.  Upon being searched Police found a .308 round of ammunition in his bag.  In relation to the knife incident he was initially charged with wounding with intent to injure, but Police agreed to lower the charge to injuring with intent to injure.

Sentencing

[5]      On 16 August, Judge Couch gave a sentence indication on the injuring and ammunition charges. Taking the injuring charge as the lead charge, the Judge referred to the Court of Appeal guidance in R v Nuku and R v Taueki.2    He identified the aggravating features as use of a weapon, the vulnerability of the victim, some premeditation “in the sense that it was not provoked or prompted by action of the victim or by any other unexpected event”, extreme violence, and the fact the attack occurred in the victim’s home. Overall his Honour considered the offending fell at the top of band two of Nuku.

[6]      From a starting point of two years, four months the Judge indicated he would add a further two months for the ammunition charge.  No uplift would be applied in respect of Mr Padgett’s criminal history, which the Judge said was “unrelated and historic”.  The Judge indicated the full 25 per cent guilty plea discount would apply, and that there may be further reductions for remorse and/or payment of reparation for

emotional harm, and constructive involvement in restorative justice.   The Judge

2      R v Taueki [2005] 3 NZLR 372 (CA); Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

advised that he had insufficient information available to assess those factors but that if guilty pleas were entered they would receive further consideration.

[7]      Overall this led to an indication of one year, 10½ months imprisonment, with the Judge remarking he “would consider home detention an appropriate alternative”. Finally, the Judge reiterated that the indication was for the two charges only, and did not take into account the cannabis pipe and disorderly behaviour charges.

[8]      At sentencing on 3 October, the Judge adopted the sentence indication and then went on to consider the other two charges.  He said “taking into account your history of similar offending on the one hand and your guilty pleas on the other hand, I apply an uplift of two months imprisonment”, resulting in an overall sentence of two years and two weeks. The Judge noted that a positive factor from Mr Padgett’s point of view was that this will mean he is eligible for parole after one third of the sentence rather than half, as would be the case if it was below two years.

Jurisdiction and approach to appeal

[9]      Mr Padgett appeals as of right.3    This Court may only allow the appeal if satisfied there is an error in the sentence imposed and that an alternative sentence should be imposed.4    If the sentence under appeal can be properly justified having regard to relevant sentencing principles, this Court cannot substitute its own views for those of the sentencing Judge.  The sentence must be either manifestly excessive or inappropriate to interfere with the sentencing Judge’s discretion.

[10]     It is not enough that the Judge made an error in his or her reasoning: the focus is on the sentence imposed rather than the process by which the sentence was reached.5

That has some application in the circumstances of this case.

3      Criminal Procedure Act 2011, s 244.

4      Criminal Procedure Act, s 250.

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

Submissions

[11]     No issue has been taken with the characterisation of the lead offence as falling at the upper end of category two of Nuku, nor of the starting point of 28 months on that charge.

[12]     Mr Lucas for Mr Padgett submitted that the two-month uplift for the December offending made the end sentence manifestly excessive. The indicated sentence of one year, ten months was appropriate, he says, for the totality of the offending. He describes the utensils and disorderly behaviour offending as “nuisance offending resulting from alcohol abuse” which on their own would not have attracted a prison sentence. He further submitted it should not have attracted an uplift in the sentence for the violence offending.  Mr Lucas noted that the Judge’s reference to Mr Padgett’s criminal history in fixing the uplift, and says this is “odd” because at the sentencing indication hearing other previous offending of a comparable vintage was deemed “unrelated and historic”.

[13]     Mr Lucas also submitted the Judge erred by not giving Mr Padgett a discount for remorse.   He referred to the pre-sentence report, which recorded Mr Padgett’s surprise that he could have committed such a serious crime, and expressed shame and remorse, and exhibited insight into the effects of his alcohol abuse. The appellant also expressed a desire to attend restorative justice and to apologise to his victims but this did not occur, through no fault of his own.  He even went so far as turning up at a restorative justice meeting that had been organised but the victims did not attend.

[14]     Mr Lucas submitted even though at the sentence indication hearing the Judge reserved the possibility of further discounts for remorse and/or restorative justice, he did not refer to those factors at the subsequent sentencing. Mr Lucas referred to Poi v R, where the Court of Appeal observed that a five per cent credit could have been appropriate where the pre-sentence report showed signs of remorse and a desire to attend restorative justice.6   Similarly, he referred to Watene v R, where the Court of

Appeal allowed a discount for remorse expressed in a pre-sentence report.7

6      Poi v R [2015] NZCA 300.

7      Watene v R [2014] NZCA 381.

Analysis

[15]     The  difficulty  with  Mr  Lucas’s  submissions  is  that  the  sentence  he  is advocating for is not too far apart from that which the Judge imposed.  What he is asking for is the removal of the two month uplift and effectively a further 5 per cent reduction for remorse. This would transmute a sentence of two years and two weeks imprisonment to one of 21 months and two weeks imprisonment.  The pre-sentence report discloses that Mr Padgett does not want home detention, and so nothing turns on that aspect of the appeal.  Although not a legitimate reason to impose a longer sentence, as Judge Couch pointed out, a slightly longer sentence could actually work out better for Mr Padgett in terms of time served.8   The reality is that this is not the case in Mr Padgett’s circumstances.

[16]     I do not think the two-month uplift for the December offending led to a manifestly excessive sentence.  The offending was unrelated to the other incident in time and nature. The Judge was entitled to impose some cumulative penalty or uplift, and the two month uplift could be describe as nominal.  While the offending on its own would not likely have attracted a prison sentence, in the present situation a community-based sentence was not available because the offender was already subject to a prison sentence. In my view, the Court was entitled to impose a small uplift to the extant prison sentence in the way Judge Couch did.  The Judge made it clear when providing his sentence indication that he anticipated a further uplift may be required to reflect the other two charges.  He certainly reserved to himself that possibility.

[17]     I accept there appears some inconsistency in the Judge’s categorisation of Mr Padgett’s previous convictions, but I do not consider that gives rise to any error in the cumulative sentence imposed.  The Judge did not apply a discrete uplift for previous convictions, but rather, in deciding to impose the additional two months, was cognisant of the fact Mr Padgett was not a first-time offender and that he has offended in the past while affected by alcohol on a number of previous occasions.

[18]     Discounts for remorse and willingness to attend restorative justice are at the discretion of the sentencing Judge.  Mr Padgett has clearly shown some remorse, not

8      Parole Act 2002, s 20.

least through the steps he took to attend restorative justice. The sentencing Judge did not refer to these factors in his sentencing notes despite indicating that they would receive further consideration.   Discount for remorse is at the discretion of the sentencing Judge.  Based on the authorities referred to by Mr Lucas, I accept it was open to the sentencing Judge to apply a small discount of around 5 per cent, particularly having regard to Mr Padgett’s willingness to engage in a restorative justice process.   However, any adjustment at this stage would result in little more than a month’s change to the sentence.   The Judge’s omission to make such a modest alteration did not, in my view, render the final sentence imposed manifestly excessive.

[19]     While Mr Padgett has not challenged the starting point adopted in relation to the lead charge, this Court on appeal must consider whether the sentence as a whole appropriately reflects the seriousness of the offending.   Given the number of aggravating features, the placement of the offending at the upper end of band two in Nuku was appropriate, and was rightly not contested to be otherwise.9    That band allows for a starting point of up to three years.10

[20]     Assessing the effective sentence as a whole against the totality of the offending, I do not consider the two years and two week sentence of imprisonment to be outside the range available to the sentencing Court.

Conclusion

[21]     Mr Padgett has not demonstrated that the sentence was manifestly unjust and the appeal should be dismissed.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co, Christchurch

9      In Rewa v Police [2015] NZHC 2459 and Elizadale v Police [2015] NZHC 959 for comparable offending involving the infliction of a laceration as a result of single aggressive act a starting point of 25 months was applied notwithstanding the absence of a weapon or a vulnerable victim.

10     Nuku v R, above n 2, at [38].