Patu v Police

[2014] NZHC 2093

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-132 [2014] NZHC 2093

BETWEEN

EDWARD PATU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	1 September 2014
Counsel:	PJB Winter for Appellant JV Barry for Respondent
Judgment:	1 September 2014

JUDGMENT OF BREWER J

Solicitors/Counsel:  Peter Winter (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

PATU v POLICE [2014] NZHC 2093 [1 September 2014]

Introduction

[1]      Mr Patu appeals the sentence imposed on him by Judge Bergseng in the District  Court  at  Waitakere  on  11 April  2014.1      The  sentence  was  14 months’ imprisonment.  Mr Patu’s complaint is that this sentence was imposed cumulatively upon the sentence of two years’ imprisonment he was already serving for other offending.2

Issue

[2]      The issue is whether, in its totality, the sentence of two years’ imprisonment

plus 14 months’ imprisonment to be served cumulatively is manifestly excessive.

[3]      Mr Winter, for Mr Patu, submits that if all of the charges on which Mr Patu has been sentenced had been before a single sentencing Judge at the same time, the final sentence would have been no more than three years’ imprisonment, with all sentences to be served concurrently.

The law

[4]      I must allow Mr Patu’s appeal if I am satisfied that there is an error in the

sentence and that a different sentence should be imposed.3

[5]      When a Judge has to sentence an offender for offending which occurred proximately to other offending on  which he has already been  sentenced, but is otherwise  unrelated,  the  totality  principle  applies.    That  is  to  say,  the  correct approach at the second sentence is for the Judge to ask what the appropriate overall sentence would have been if the offender had been sentenced on all charges at the same time.4

[6]      In this case, Mr Patu was sentenced on 24 January 2014 to a total of two

years’ imprisonment on the following charges:

1      R v Patu DC Waitakere CRI-2013-090-5097, 11 April 2014.

2      Police v Patu DC Waitakere CRI-2012-090-8018, 24 January 2014.

3      Criminal Procedure Act 2011, s 250.

4      R v Nuku [1969] NZLR 343 (CA) at 344.

(a)	Assault: On 6 October 2012, Mr Patu was intoxicated and hit his partner in the face three times, resulting in bruising and a swollen and
bloodied nose.
(b)	Assaulting a police officer and possession of an offensive weapon: On
22 January 2013, Mr Patu breached his conditions of bail and went to his partner’s address.  The Police arrived and Mr Patu held a piece of
wood and threw punches at the officers which did not connect.   He was pepper sprayed and arrested.
(c)	Excess  breath  alcohol  third  or  subsequent:  On  29 January  2013, Mr Patu was stopped by Police while driving.    His breath alcohol
reading was 655 milligrams per litre of breath.  He has four previous convictions for this offence from 1991, 1993, 1994 and 2005.
(d)	Receiving a stolen vehicle: On 28 March 2013, Mr Patu received a stolen motor vehicle.
(e)	Threatening to kill, injuring with intent to injure and possession of an offensive weapon: On 15 May 2013, Mr Patu had been drinking and
was aggressive.  He picked up a knife and held it against his partner’s neck, threatening her and saying, “I might as well kill you now”.  The
knife was held to her throat several more times.  Mr Patu then picked up a taiaha and hit his partner over the head and neck with it.
[7]	The	sentencing   Judge   took   a   global   starting   point   of   three   years’

imprisonment, deducted 25 per cent for Mr Patu’s pleas of guilty and a further three months for steps taken by him towards rehabilitation.   The end sentence was, therefore, two years’ imprisonment.

[8]      In  helpful  submissions  today,  Mr  Winter  has  made  me  aware  of  the background.  Judge Tremewan was aware of the impending sentence on the August

2013 offending and she nevertheless gave a discount for Mr Patu’s rehabilitative

efforts in prison.  Her Honour was concerned to reduce Mr Patu’s sentence as much

as possible to emphasise rehabilitation and reintegration.

[9]      The charge before Judge Bergseng was one of injuring with intent to injure. The offending occurred  on 20 August 2013.    It related to  an incident  in which Mr Patu  participated,  along with  two  female offenders.    Ironically,  one was  his partner, in respect of assaults on whom he was at that time awaiting sentence.  One of the female offenders arranged to meet the victim in a public park.   When he arrived, the female offender struck him in the face and dragged him to an area of bush.  Mr Patu and the other female offender then emerged from the bush.  The first female offender punched, slapped and scratched the victim and kicked him in the groin area.  Mr Patu kicked the victim in the eye socket and used an empty alcohol can to cut him all over his body.  Mr Patu then put his foot on the victim’s neck and said, “you are lucky you didn’t get your nuts cut off”.  As a result of the assault, the victim suffered bruising and scratching, a black eye and a bite mark to the chest.

[10]     Judge Bergseng fixed  a starting point  of two  years, considering that  the offending fell at the bottom of band 3 of Nuku.5   He increased the sentence by three months to take into account Mr Patu’s previous convictions and the fact that the offending occurred while on bail.   The Judge allowed a 25 per cent discount for Mr Patu’s  guilty plea.   The Judge then stood  back  and  considered  the  issue of totality.   He discounted the sentence by an additional six months on this basis to

reach the end point of 14 months’ imprisonment.

Decision

[11]     In my view, Mr Patu has been treated leniently on both occasions on which he appeared for sentencing.

[12]     In relation to the first tranche of sentencing which occurred on 24 January

2014:

(a)      The lead offending should have been the attacks on his partner which occurred on 15 May 2013. Not only was the offending serious, he had previously assaulted his partner and that charge was also before the sentencing Judge.   Taking into account the  guideline judgment of Nuku, my view is that, on the 15 May 2013 offending alone, a two year starting point could have been justified.

(b)My  view  is  that  on  the  violence  and  receiving  a  stolen  vehicle charges,  a  sentence  of  two  years  six  months’ imprisonment  was justified with a discount of 25 per cent for pleas of guilty, taking the sentence to one year 11 months’ imprisonment.

(c)      The excess breath alcohol charge warranted a cumulative sentence of imprisonment.  I had a similar case in Noble v Police,6 where I upheld a  starting  point  of  eight  months’ imprisonment  for  a  fifth  excess breath alcohol charge where the previous convictions were from 1981 to 2002.

(d)On the excess breath alcohol charge, a starting point of eight months’ imprisonment was justified which, with a 25 per cent discount for the guilty plea, would have resulted in an end sentence of six months’ imprisonment cumulative upon the other offending.

[13]     Therefore, instead of an end sentence of two years’ imprisonment, I consider a sentence of one year 11 months, plus a cumulative sentence of six months’ imprisonment, was amply justified.

[14]     I also consider that the sentence of Judge Bergseng was lenient.  I agree that a starting point of two years’ imprisonment was appropriate, but the Judge could easily have increased this by six months to reflect the fact that this was serious violent offending while Mr Patu was on bail for other serious violent offending.  The 25 per cent guilty plea discount would result in an end sentence of one year and 11 months’ imprisonment.

[15]     If sentencing on  all the charges had occurred  at the same time, and the sentencing  Judge  had  decided  to  group  the  violence  charges  together,  then  the

20 August 2013 offending would have been the lead offence. A starting point of two years on that charge, with an uplift of six months to mark the fact that Mr Patu was on bail, was within range. A further uplift for the other violent offending would have been necessary.  Some of that involved repeated acts of violence on his partner.  The uplift would have to be significant.  I will adopt one year as appropriate.  That brings the total to three years six months.  Some account would also have to be taken of the receiving charge, but I will put that to one side for present purposes.  The 25 per cent discount for the pleas of guilty would, therefore, reduce the sentence to two years eight months.

[16]     The drink driving charge would still be cumulative.  That, with the discount for the plea of guilty, would result in a final sentence of two years eight months plus six months to be served cumulatively.   A total of three years two months’ imprisonment.

[17]     This must be compared with the result for Mr Patu of Judge Bergseng’s

sentence of three years two months, of which 14 months is cumulative.

[18]     Sentencing is not a science.  Within an acceptable range, different Judges can have different views.  In this case, I have regard to Mr Winter’s submission that the grievance felt by Mr Patu is that his co-offenders in the August 2013 offending have been treated much more lightly than he has been, although they were the principal offenders.  He feels an added sense of grievance in that one of those offenders was his partner.  However, the female co-offenders were before the Court for the August

2013 offending only.   It might be that Judge Tremewan did her best to emphasise reintegration and rehabilitation.  I am told that Judge Bergseng knew the outcome of her sentence, but did not have before him the actual sentencing notes and so he did not know what Judge Tremewan was trying to achieve.

[19]     For the purpose of this appeal, however, my task is to stand back and say whether the final result for Mr Patu was inside the appropriate sentencing range or not.     I  cannot  say  that  Judge  Bergseng  was  wrong  to  impose  his  sentence

cumulatively on the earlier sentences.  Indeed, I think he was right.  Nor can I say that the end result is manifestly excessive.  My analysis came to a very similar result, even with the receiving charge treated as a makeweight.   I point out that with the number and types of offences Mr Patu committed, there has to be a broader range of acceptable sentences than would otherwise be true.

[20]     The appeal is dismissed.

Brewer J