Petersen v Police

[2017] NZHC 2855

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000336 [2017] NZHC 2855

BETWEEN

WOLFGANG PETERSEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	20 November 2017
Counsel:	JW Mackey for Appellant EAM Mok for Respondent
Judgment:	21 November 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 21 November 2017 at 1 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Meredith Connell, Auckland.

JW Mackey, Auckland.

PETERSEN v POLICE [2017] NZHC 2855 [21 November 2017]

[1]      On 15 September 2017 Judge A J Fitzgerald sentenced Mr Wolfgang Petersen to a term of two years and four months’ imprisonment.1  On behalf of Mr Petersen, Mr Mackey contends the sentence is manifestly excessive.   Mr Mackey’s primary argument is that the Judge uplifted the starting point unduly for offending unconnected to the most serious offence of aggravated robbery.   The respondent contends the sentence is unobjectionable as within range, and indeed benign.

[2]      The Judge was confronted with three sets of offending.   Between 21 and

23 August 2016, Mr Petersen—who was then 16—and two adult offenders committed aggravated robbery and two burglaries.  The trio robbed staff at a service station and burgled two commercial premises.  A stolen vehicle was used in relation to these offences, as was a “ram-raid” technique: smashing into premises using a stolen car. On 24 July 2017 Mr Petersen was transferred from the Youth Court to the District Court for sentence.

[3]      On 7 February 2017, Mr Petersen and two others burgled a service station. Mr Petersen had just turned 17.  This offending originally resulted in a term of intensive supervision and community work, but because it was committed while Mr Petersen was awaiting sentence for the August 2016 offending, the Department of Corrections applied to the District Court to cancel the sentence.

[4]      On 24 June 2017, Mr Petersen and many others attacked a young man and woman, and stole the man’s phone after knocking him unconscious.  This led to an injuring with intent to injure charge.  Mr Petersen unlawfully took a car the next day. Mr Petersen committed all of this offending while subject to the community-based sentence in relation to the February 2017 burglary.

[5]      Judge Fitzgerald adopted a starting point of five years’ imprisonment for the August 2016 aggravated robbery.  The Judge considered the 2017 injuring would, in isolation, have warranted a starting point of two years’ imprisonment.   A similar starting point was considered appropriate for the 2017 burglary, had it stood alone. The Judge adopted a global starting point of six years and two months’ imprisonment

in recognition of the totality principle.

1      R v Petersen [2017] NZDC 22021.

[6]      The  Judge  then  heavily  discounted  the  sentence:  30  percent  for  youth;

10 percent for remorse; a further 10 percent in recognition of Mr Petersen’s difficult background; and 25 percent for guilty pleas.  The result: a sentence of two years and four months’ imprisonment.

[7]      Mr Mackey takes no issue with the five-year starting point for the aggravated robbery.  But, he contends the 2017 offending should not have resulted in an uplift of

14 months. The argument has two discrete elements:

(a)      The uplift for the injuring offence should not have been more than six months’ imprisonment.

(b)The uplift for the 2017 burglary was “invalid” as Mr Petersen did not consent to being re-sentenced.  It follows there was no jurisdiction for Judge Fitzgerald to uplift the sentence for this offence.

[8]      Mr Mackey contends home detention would have been available but for these errors.  That sentence would mean Mr Peterson would not be in prison, and thereby away from other and older inmates who may further influence Mr Peterson in the wrong direction “of a life of crime”.

[9]      I deal with the second argument first.  Sections 54K and 68 of the Sentencing Act 2002 permit a Court to vary or cancel sentences of intensive supervision and community work when the offender has failed to comply with the sentence, or when there has been a change in circumstance so the sentence is no longer appropriate. The offender’s consent is not required.

[10]     Judge Fitzgerald was satisfied Mr Petersen had failed to comply with his sentence of intensive supervision and community work.  And Mr Mackey was given opportunity to make submissions on the application by Corrections. In any event, the other statutory criterion was met in that Mr Petersen’s circumstances had changed and the sentence was no longer appropriate; he was now in custody for sentence on a raft of serious matters.

[11]     Mr Mackey submitted the community work sentence could have sat alongside a sentence of home detention.   For the respondent, Ms Mok accepted as much.2

However, as she noted, the issue was moot unless there was a realistic prospect the end sentence was two years’ imprisonment or less.

[12]     Which brings me to Mr Mackey’s first contention.  Mr Mackey contended the injuring offence did not justify a nine-month uplift, for, an 18-month starting point would  have  been  appropriate  had  this  offence  stood  alone.    In  the  alternative,

Mr Mackey contends a nine-month starting point was too great in any event, and this uplift materially contributed to the sentence exceeding the two-year threshold for home detention.

[13]     It is convenient to begin with the facts, which the Judge summarised:3

The facts in relation to the second set of charges are that you were with a group of about 10 associates who began verbally abusing the first victim. You took exception to an item of clothing he was wearing and began punching him about the face and body, striking him repeatedly using both hands.  You also attempted to kick the victim but slipped and fell.  You then continued your attack on the victim, punching and kicking him while several associates joined in. The victim fell to the ground and lost consciousness. While he lay on the ground you removed a satchel from him containing various items including a phone belonging to the second victim, a female. When she attempted to grab the bag and pull it free from your grasp you attempted to kick her head but missed and struck her in the shoulder.  The first victim was left unconscious and bleeding from the mouth and suffered several broken teeth plus cuts to his face.

[14]   As will be apparent, Mr Petersen instigated the offending, which was unprovoked.   He administered blows to the head.   The victims were hopelessly outnumbered  (10  or  11  to  two).    The  male  victim  was  rendered  unconscious. Mr Petersen stole his phone while he was defenceless.  Mr Petersen also attempted to kick the female victim to the head when she attempted to stop him.  He hit her in the shoulder.   The male suffered significant injury.   The sequence is unhappy.   And

cowardly.

2      See Sentencing Act 2002, s 19.

3      R v Petersen, above n 1, at [4].

[15]     As the Judge recognised, the offending has similarities to Takerei v Police.4

That defendant assaulted two victims.   The first was knocked unconscious.   The second suffered only a minor graze. The sentencing Judge adopted a starting point of two years’ imprisonment in relation to the lead charge of injuring with intent to injure, with an eight-month uplift for the second attack.  Thomas J considered the starting point well within range.

[16]     For these  reasons,  I  consider  the  starting point  approach  unimpeachable, particularly given Mr Petersen was then subject to a community-based sentence in relation to the February 2017 burglary.

[17]     This leaves the issue of uplift, which turns on operation of the totality principle. The respondent cited Toluono v Police, in which I said:5

The totality principle operates to prevent grossly disproportionate sentences. Contrary to popular misconception, the principle does not permit a defendant to commit additional crimes without punishment.  But it does conventionally entail some reduction of the starting point that would have been adopted had the offending stood alone.  The level of reduction depends on circumstance. There is no prescription.

[18]     Early discussion of the totality principle is found in R v Bradley,6  in which Cooke J said consecutive sentences should not result in an aggregate “wholly out of proportion to the gravity of the offences”.   As this statement implies, the totality principle embraces two competing elements: a requirement the sentence reflect the gravity of the offending; and a corresponding requirement the sentence not be disproportionately severe.   Care must always be taken to balance the two, for, as Eichelbaum CJ observed, defendants may otherwise believe further offences can be committed with impunity.7     Or as Harrison J observed, defendants may go “unpunished”.8    But equally, sentences must not be crushing, especially when the

offender is a young person or recently beyond Youth Court jurisdiction.

4      Takerei v Police [2014] NZHC 3360.

5      Toluono v Police [2017] NZHC 809 at [21] (footnotes omitted).

6      R v Bradley [1979] 2 NZLR 262.

7      Hiroki v Police HC Wellington AP31/92, 13 May 992.

8      R v McDonald HC Auckland CRI-2009-004-16897, 22 September 2009 at [37].

[19]     Again,   I  consider  the   Judge’s   approach   unimpeachable.     The  Judge significantly discounted the 2017 offences while ensuring these—which were serious in their own right—did not go unpunished.   Moreover, the February burglary was committed while Mr Petersen was on bail for aggravated robbery and burglary; and the injuring offence while Mr Petersen was subject to a sentence for the February burglary.  An appreciable uplift was required to reflect the seriousness of the 2017 offending and its multiple aggravating features.

[20]     It follows I accept Ms Mok’s submission there was no realistic prospect of a sentence at or below the threshold for home detention; no issue was taken with the five-year starting point; and the uplifts were available.

[21]     I acknowledge this  conclusion  will  disappoint Mr Peterson’s  father,  who attended the hearing of the appeal.  But as I explained to him, appeal Courts may not intervene in this context unless the Court below committed error, and a different sentence should be imposed. That is not the position here.

[22]     The appeal is dismissed.

……………………………..

Downs J