Peters v Auckland Transport

[2012] NZHC 2265

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-470-29 [2012] NZHC 2365

BETWEEN  JASON REX THOMAS MANEY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         13 September 2012

Counsel:         JL Smylie for Appellant

N Belton for Respondent

Judgment:      13 September 2012

JUDGMENT OF TOOGOOD J

Solicitors:

JL Smylie, Barrister, Tauranga:  [email protected]

N Belton, Ronayne Hollister-Jones Lellman, Tauranga:  [email protected]

MANEY V NEW ZEALAND POLICE HC ROT CRI-2012-470-29 [13 September 2012]

[1]      Jason Rex Thomas Maney appeals against an effective sentence of two years one month’s imprisonment for assault with intent to injure and a separate charge of theft imposed by Judge Ingram in the District Court at Tauranga.  He argues that the total  effective  sentence  was  manifestly  excessive  and  that,  on  the  basis  of information obtained since the sentence of imprisonment was commenced, the sentence imposed would not allow or ensure that the appellant could complete a rehabilitation plan which he has agreed with prison administration.

[2]      The  victim  of  the  assault  charge  was  the  appellant’s  domestic  partner. Following an argument, the appellant chased and grabbed her before punching her several times about the head.  She received a severe laceration above the nose and a bruised eye.   The appellant pleaded guilty to that charge at an early stage of the proceedings, and also pleaded guilty to an unrelated charge of theft of property, valued between $500 - $1,000, which included a laptop, a BlackBerry mobile phone, a passport, an MP3 player and two backpacks.

[3]      There was no pre-sentence report before the Court at the time of sentencing because the appellant insisted that the sentencing should take place without one.  The Judge adopted a starting point of two years’ imprisonment on the assault charge, against  a  maximum  sentence  of  three  years’ imprisonment.    He  then  applied  a

25 percent discount for the guilty plea before then adding a six month uplift to reflect the appellant’s previous convictions.  Although aged only 32 years, the appellant has a lengthy history of offending including for assault, fighting, injuring with intent, indecent assault, assault with intent to injure, assaulting Police, assaulting with intent to rob, and the latest being assault with intent to injure committed in June 2012.  On that conviction, he received seven months’ imprisonment.

[4]      To the term of two years’ imprisonment for the assault charge which resulted from the Judge’s approach, a further uplift of one month’s imprisonment was added to mark the theft.

[5]      It  would  have  been  more  appropriate,  in  accordance  with  the  Court  of Appeal’s judgment in R v Clifford,[1] for the District Court Judge to have set an initial starting point related to the seriousness of the offending and then to apply an appropriate uplift to mark the need for deterrence and community protection in light of the appellant’s previous history, before applying the discount for the guilty pleas. The outcome of the approach taken by the Judge resulted in an additional period of

[1] R v Clifford [2011] NZCA 360; [2012] 1 NZLR 23.

imprisonment of one-and-a-half months over that which would have resulted had he applied the Clifford methodology.  I will return to that point in a moment.

[6]      The  Judge  was  expressly  concerned  to  provide  an  opportunity  for  the appellant to address the problems underlying his repeated offending.  He said that he intended to impose a sentence which put the appellant in the hands of the Parole Board so that the Board might consider getting the appellant into a facility which provided him with an opportunity to address his difficulties.  The Judge suggested that the appellant needed a full-time rehabilitative programme which he could attend on a residential basis.  Because the sentence imposed exceeded 24 months, the Judge was not in a position to impose any post-release conditions but, rather, he seems to have intended that the Parole Board should take whatever steps where appropriate to ensure that opportunities for rehabilitation were provided.

[7]      Mr Smylie submits that the starting point taken by the Judge was excessive. But bearing in mind that the severe laceration caused to the victim in the assault could have resulted in a more serious wounding charge for which the maximum penalty would have been significantly higher, or an injuring charge, a sentence of two years’ imprisonment was not inappropriate in my view.  I reach that conclusion after allowing for appropriate adjustments to take account of the approach of the

Court of Appeal in Harris[2]  and the explanation of it in Samuel.[3]   The uplift of six

[2] R v Harris [2008] NZCA 528.

[3] Samuel v R [2012] NZCA 376.

months’ imprisonment, bearing in mind the appellant’s history of violent offending,

was also appropriate, and I agree with the Judge that the theft charge needed to be marked in some way.  Having regard to the nature of the assault and its consequences

and the offending overall, I am not persuaded that the sentence of two years one

month’s imprisonment in itself was manifestly or clearly excessive.

[8]      However, given the Judge’s intention that the appellant should be provided with a reasonable opportunity to make genuine attempts at rehabilitation, Mr Smylie submits that in fact the sentence may not assist to achieve the end which the Judge intended.  Mr Smylie has produced a copy of a rehabilitation plan prepared for the appellant, which includes a programme in the Special Treatment Unit Rehabilitation Programme  (STURP),  the  difficulty  being,  however,  that  the  appellant  is  not currently eligible to attend the programme because of his prison classification of high/medium.   He will not be eligible for the programme unless reclassified low/medium or lower. This classification is not due for review until December 2012, but a lower classification is by no means guaranteed and, in any event, there is a waiting list for the January 2013 programme.  This means that there is no certainty that the appellant will be able to complete the nine month STURP programme before his sentence end date of 6 July 2014.

[9]      The  result  is  that  while  the  appellant  may  be  able  to  undertake  the programme, it is by no means certain or even probable.  Because of the length of the sentence imposed, the Judge was unable to impose release conditions.  The result is that the appellant may fall between the cracks and be released from prison without any rehabilitation programme having been attended or being in prospect.

[10]     As   Mr Smylie   submits,   a   sentence   of   between   12   and   24 months’ imprisonment would have entitled the Judge to impose release conditions which could   have   included   a   requirement   that   the   appellant   should   attend   such rehabilitation  programmes  upon  his  release  as  may  be  directed  by  a  probation officer.[4]

[4] Sentencing Act 2002, ss 93(2) and 93(2B).

[11]     I have already indicated that the Judge’s approach to determining the length of the effective sentence was not consistent with the preferred approach as described

by the Court of Appeal in Clifford.[5]    Under that approach, the discount for a guilty

[5] Clifford at [60].

plea should be applied once all other aggravating and mitigating factors relating to the  offending  and  the  offender  have  been  taken  into  account.   As  I  have  also indicated, adopting the Clifford approach would have resulted in the Judge reaching an end sentence of 23 months two weeks’ imprisonment.  It follows that, had Judge Ingram adopted the Clifford methodology but included the starting point, the uplift and the discount, all of which I agree with, he would have reached a sentence which would have enabled him to ensure that an appropriate rehabilitation programme was made available to the appellant after he had completed his sentence.

[12]     The Court is obliged to take into account the views of the victim of the appellant’s offending.   The victim says that her own behaviour contributed to the appellant’s offending and she speaks supportively of him in terms of their 11-year relationship and, particularly, his relationship with their four-year-old son.  She asks the Court to give the appellant credit for the positive steps he has taken in a sincere attempt to make more of his life.

[13]     An appellate court frequently puts errors in sentencing approach to one side in favour of assessing whether the outcome overall was appropriate.  In this case, the error in the Judge’s approach in fact limited the Judge’s opportunity to impose a sentence which would achieve the outcome which he considered to be appropriate.

[14]     In the circumstances, I allow the appeal in part.  I quash the sentence of two years’ one month’s imprisonment on the assault charge and replace it with a sentence of  23 months’ imprisonment.    The  standard  release  conditions  shall  apply.    In addition, under s 93(2)(b) of the Sentencing Act 2002, I impose the following special conditions:

(a)     The  appellant  shall  attend  and  complete  such  psychiatric, psychological and/or counselling assessment, programme and/or treatment to address identified offending behaviour as the probation officer may direct, and shall complete the same to the satisfaction of the probation officer and the programme provider;

(b)If required by the probation officer, the appellant shall attend and complete an appropriate drug and alcohol programme to the satisfaction of the probation officer and programme provider.  Details of the appropriate programme, if any, are to be determined by the probation officer.

(c)      The appellant shall attend such rehabilitative or other programme (including any residential programme) as may be directed by a probation officer, and shall complete the same to the satisfaction of the probation officer and the programme provider.

[15]     The concurrent sentence of nine months’ imprisonment imposed on the theft

charge remains in place.

.............................................

Toogood J