Perkins v Police
[2014] NZHC 1544
•3 July 2014
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2014-425-000020 [2014] NZHC 1544
ROY ALEXANDER PERKINS
v
NEW ZEALAND POLICE
Hearing: 3 July 2014 Appearances:
D G Slater for Appellant
E L Higbee for CrownJudgment:
3 July 2014
JUDGMENT OF DUNNINGHAM J
[1] This is an appeal against sentence, asserting that the sentence imposed was manifestly excessive.
[2] On 30 May 2014, the appellant, Mr Perkins, was sentenced to 33 months imprisonment on charges relating to three incidents. The appellant submits that, had a proper approach been taken, a sentence of around two years imprisonment would have sufficiently marked the totality of the appellant’s offending.
The charges
[3] The sentence relates to incidents occurring on three separate dates.
[4] On 3 August 2013 the appellant, along with three others, invaded the victims’ home at about 9.45 pm. A text message had been sent by a co-offender threatening their arrival. The appellant and his co-offenders barged into the house and began
assaulting the occupants of the house. The summary of facts records that the
PERKINS v NEW ZEALAND POLICE [2014] NZHC 1544 [3 July 2014]
appellant punched one victim in the jaw, another victim about the head and upper body at least ten times, and a third victim in the left side of the face with a haymaker type punch causing a cut to his temple.
[5] The appellant and his co-offenders also inflicted significant property damage on the house, with the total cost to repair the damage being $9,456.04.
[6] As a consequence of this event the appellant was charged with injuring with intent to injure, burglary and intentional damage.
[7] The second incident occurred on 15 November 2013 when the appellant, while on bail, was apprehended for drink driving. His evidential breath test resulted in a recording of 616 micrograms of alcohol per litre of breath.
[8] When he was placed in a police cell he damaged the cell by burning his name into the ceiling.
[9] The third incident occurred on 8 March 2014, when, at around 3.00 a.m., the appellant arrived at the house of people he had been drinking with earlier. An argument developed between the appellant and the victim, and he then assaulted the victim, threatened to kill him and threw rocks at the victim’s house breaking the window.
District Court Judge’s decision
[10] After reciting the factual background above in some detail, and noting the appellant’s previous convictions for burglary and violent offending, and for breaching Court ordered sentences, and failing to answer bail, the Judge addressed the usual sentencing principles. He took into account that the August offending was premeditated and serious violent offending, the November offending occurred while he was on bail and in breach of his bail conditions, and the March offending had parallels with the August offending in that it was “an unprovoked attack, an attack to the head and there were threats to kill”. He also records that Mr Perkins was still on bail at the time of that offending.
[11] The Judge then undertook a relatively detailed sentencing calculation and arrived at the end sentence by taking the following steps:
(a) for the offending on 3 August 2013 (injuring with intent to injure/burglary/intentional damage), he began with a starting point of
30 months imprisonment, consistent with the starting point for the
appellant’s co-offenders;
(b)an uplift was added for the November 2013 intentional damage and excess breath alcohol of one month;
(c) a further uplift was added for the March 2014 offending (threatening to kill/assault and intentional damage) of 12 months;
(d)a further uplift of four months imprisonment was added for personal aggravating features of offending while on bail and previous convictions for violence and burglary. This gave a total starting sentence of 47 months imprisonment.
(e) from that figure a period of three months was deducted to reflect the totality of the offending. This gave an “adjusted and final starting point” of 44 months imprisonment;
(f) from that, while noting there was no remorse, a reduction of 5 per cent was allowed for the possibility of reparation and willingness to address underlying problems, and a 20 per cent reduction for his guilty pleas was adopted, noting it was some five to six months later that he pleaded guilty to the August offences;
(g)this 25 per cent reduction resulted in a sentence of 33 months imprisonment.
Appellant’s submissions
[12] The appellant raised four arguments on appeal:
(a) the starting point of nearly four years imprisonment was too high for the totality offending;
(b)consequently the three month reduction to reflect the totality principle was too little in the circumstances;
(c) the characterisation by the Judge of the 8 March 2014 offending as a second home invasion was contrary to the summary of facts. Similarly the reference to the March offending as having “paralleled the offending in August” was in error. Because of this, the Judge applied an unjustified aggravating aspect to the March offending, and thus the 12 month uplift for the March offending was too great.
(d)The guilty plea credit was insufficient as the appellant submits that “there was no delay in pleading once the appropriate charges were before the Court”.
[13] The appellant proposes that an overall starting point of three years would have been appropriate and, with credits of 5 per cent for reparation and 25 per cent for a guilty plea, would have resulted in a sentence of a little over two years imprisonment.
Discussion
Was the starting point too high?
[14] The starting point was a combination of the sentences imposed for the offending on three separate occasions, with an uplift for personal aggravating factors. That invites an investigation of the sentence imposed for the lead offending, and of the uplifts imposed for the subsequent offending.
[15] No issue has been taken with the four month uplift for personal aggravating features and I am satisfied that such an uplift was justified.
[16] Mr Slater argued that there was an error in two aspects of calculating the starting point. The first was in respect of the 30 month starting point for the lead offending. He pointed out that his client had only been charged with one count of injures with intent to injure and the resulting injuries to the victims were not significant in the spectrum of possible injuries. While he accepted that the summary of facts pointed to several acts of violence on behalf of the appellant, he considered I should only focus on the fact that there was one charge in this respect. However, he acknowledged that the August offending had a number of the aggravating factors
referred to in Nuku,1 including a level of premeditation, punches to the victims’ head,
and the attack being in the context of a home invasion with multiple attackers. However, he urged me to consider the overall degree of violence, which he did not consider excessive, rather than focus mathematically on a number of aggravating features.
[17] Mr Higbee, in contrast, considered that the offending did have the aggravating features referred to above, as well as a level of violence which was “moderately aggravated”. In all the circumstances Mr Higbee submitted a starting point of three years would have been in range. He also drew a comparison with the
decision in R v McNeice,2 where, in respect of what he described as lesser offending,
the starting point was set at two years six months by the Court of Appeal.
[18] I am satisfied that the starting point adopted for the offending in the first incident is clearly within range. The offending did demonstrate a number of the aggravating features referred to in Nuku, placing it squarely in band 3 where “a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present, and the combination of those features is particularly
serious”.3
[19] It was also important that the starting point for sentencing for that incident was consistent with the other three offenders in order to reflect the principle in s 8(c)
of the Sentencing Act 2002 which seeks consistency in sentencing between similar
1 Nuku v R [2013] 2 NZLR 39.
2 R v McNeice [2012] NZCA 566.
3 At [38].
offenders in similar circumstances. This was clearly a joint enterprise to go to the victims’ house and exact revenge, and there was no principled basis for departing from the starting point for sentencing of 30 months which applied to the other three offenders.
[20] No issue was taken with the one month uplift for the offending which occurred in November.
[21] However, the uplift for the March offending is more problematic. The District Court Judge did, at [3] of his sentencing notes, describe it as a “second home invasion”. While he did, at [17], acknowledge that the appellant entered the victims’ home “albeit initially by consent”, the overall impression is that he saw this as offending of similar gravity and type to the November offending. In fact, looking at the summary of facts, it appears to be simply a drunken lashing out against an associate in the early hours of the morning, and not analogous in any way to a home invasion. I therefore consider it only justified an eight month uplift.
[22] Overall, I consider the starting point, before reductions are taken into account, should have been 43 months.
Was the reduction to reflect the totality principle sufficient?
[23] The appellant argues that the downward adjustment of three months when considering the totality of the offending and the starting point for sentence was too little in the circumstances. The respondent submits that the sentence reduction in respect of the totality principle is unimpeachable given that the offending was separate in time, involved different types of offending and victims, and that the subsequent offending both involved breaches of bail.
[24] Having made the reduction in uplift for the sentence on the third incident, I see no need to alter the reduction for the totality of offending. I consider that any greater reduction would fail to reflect the sentencing principles that require me to denounce the conduct in which the offender was involved, to deter the offender from committing the same or similar offences, and to protect the community from the offender.
Was an appropriate credit given for guilty pleas?
[25] The appellant argues that full credit of 25 per cent, applying the principles in Hessell v R,4 should have been applied. The District Court Judge gave a 20 per cent credit, noting that “in respect of the August 2013 charges he initially pleaded not guilty and it was some five or six months later before he changed his plea to guilty”.
[26] The appellant argues that the Judge failed to consider that the charges were amended so that while initially the appellant was charged with four counts of injuring with intent to cause grievous bodily harm, three of these were withdrawn and the remaining charge was amended to the lesser charge of injuring with intent to injure. Until those amendments were made, the appellant’s only course was to plead not guilty and he pleaded guilty as soon as the amendment was made and the other charges were withdrawn. Similarly, in relation to the March 2014 incident, he was originally charged with assault with intent to injure which, when amended to common assault, he immediately pleaded guilty to. Accordingly there was no delay in pleading once the appropriate charges were before the Court.
[27] Mr Higbee’s submissions in response say that there was no suggestion that the defendant promptly indicated a willingness to plead to reduced charges. He also records that the defendant has, in between the filing of the November charges and entering his guilty plea, reoffended. In addition, the strength of the prosecution case was high, so that a full discount would not be appropriate.
[28] Having regard to the principles in Hessell I am satisfied that the District Court Judge exercised his discretion appropriately on this occasion. There cannot be a presumption that every guilty plea will be granted the maximum 25 per cent discount and the sentencing Judge is normally in the best position to take into account the totality of factors which will justify the discount applied. The principle of applying a discount for a guilty plea is not just to recognise the benefit there is to the justice system, but it recognises the defendant’s acknowledgment of his or her offending. A reduction for a guilty plea where the prosecution evidence is strong and
the defendant has gone on to offend in the interim, may well justify a slightly lesser discount than would otherwise apply.
[29] I also take into account the consideration raised in Hessell where guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. There it was said:5
To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example if the Crown agrees to accept the plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentencing may not properly reflect the offending. The only way in which the many variable circumstances of individual cases which are relevant to a guilty plea can properly be identified is by requiring their evaluation by the sentencing Judge, and allowing that Judge scope in light of the conclusion he or she reaches to give the most appropriate recognition of the guilty plea in fixing the sentence.
[30] In the present case, I consider the sentencing Judge has appropriately had regard to all circumstances bearing on the entry of the guilty pleas and has granted a generous, but not the maximum, reduction in sentence for that. I can see no basis for reaching the conclusion he was in error in his approach.
Conclusion
[31] Taking into account all the above considerations, the only area in which I would diverge from the District Court Judge’s approach to sentencing is in the uplift imposed to reflect the charges arising out of the third incident. If I take into account that adjustment the starting point, before any reductions are made, is 43 months, not
47 months. Taking off the three months to reflect the totality principle, the sentence is reduced to 40 months. If a 25 per cent discount is applied to that to reflect the discount for the willingness to pay reparation and the guilty pleas, that results in a sentence of 30 months, rather than 33 months.
[32] While a reduction of that magnitude borders on “tinkering”, which is something this Court is loathe to do with a District Court Judge’s sentence, this nevertheless is a material change to the sentence from the appellant’s perspective.
[33] Accordingly the appeal is allowed, the sentence of 33 months is quashed and a sentence of 30 months is substituted.
Solicitors:
David Slater, Barrister, Invercargill
Preston Russell Law, Invercargill
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