Pirini v Police HC Whangarei CRI 2005-488-22

[2005] NZHC 1720

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2005-488-0022

BODEAN DENNIS PIRINI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 April 2005 Appearances: C Eckard for Appellant

P Magee for Respondent Judgment:     20 April 2005

ORAL JUDGMENT OF LAURENSON J.

Solicitors:

Cor Eckard Law Office, Whangarei for Appellant Crown Solicitor, Whangarei for Respondent

BODEAN DENNIS PIRINI V NEW ZEALAND POLICE HC WHA CRI 2005-488-0022 20 April 2005

Introduction

[1]    Mr Pirini has appealed against an effective sentence of 9 months imprisonment imposed in the District Court at Whangarei on 24 March 2005, in respect of the following charges:

[i]Injuring with intent to injure laid pursuant to s189(2) of the Crimes Act 1961 and for which the maximum penalty is 5 years imprisonment.

[ii]Intentional damage laid pursuant to s23 of the Summary Offences Act 1981 the maximum penalty for which is 3 months imprisonment.

Background facts

[2]    The charges arose out of an unpremeditated assault by four young people, including the appellant, who were heavily affected by alcohol. They set upon an innocent bystander in the street at 2.30am. The incident started by one of the other offenders hitting the victim for no apparent reason. The victim fell to the ground where he was hit and kicked around the head. A taxi driver came upon the scene and tried to intervene by shining his vehicle lights on the area where the assault was taking place. In response, the appellant kicked in the side panels of the taxi driver’s car. The assailants, including the appellant, then ran off. It seems from the pre- sentence report that the appellant paused to hit the victim again. The victim received several cuts and bruises to his head and body, and he required treatment in hospital.

[3]    The District Court Judge sentenced on the basis that, whilst appreciating that the appellant was apparently, a young person, with no previous convictions, the purposes of sentencing demanded that pre-eminence be given to the need to deter the appellant and others from such behaviour which, of course, is utterly unacceptable.

[4]    The appellant had pleaded guilty at the first reasonable opportunity and the sentence to be imposed was reduced by one-third to an effective term of 9 months. Leave to apply for home detention was declined.

[5]    Mr Eckard, in a typically thoughtful submission, raised four matters. The first was that the sentencing notes indicated an over-emphasis of the requirements to deter others and, at the expense of the need to consider the appellant’s rehabilitation and reintegration and, to impose the lightest sentence possible. The Judge was in the position of having to weigh these factors. He concluded at para [4]:

So I have to weigh the sentencing aims of helping you to reform with the need to hold you responsible, and when it comes to violence to other human beings I am afraid the need to hold you responsible is paramount.

As I have already noted, this was an unwarranted apparently, spontaneous, attack on an innocent bystander in a public street. In my view, the Judge reacted entirely appropriately by adopting deterrence as the pre-eminent concern.

[6]    The second ground advanced on the appellant’s behalf was that this was a case of a first offender, and therefore greater attention should have been placed on this factor. Whilst it might have been appropriate to impose a short, sharp sentence in the first instance, a net sentence of 9 months for a young person 18 years of age as a first sentence, was excessive.

[7]    It appears however, that the Judge’s understanding that this appellant was a first offender is not correct. The information in this regard is not entirely clear, but having had further information proffered to me, it does seem that the appellant had previous convictions dating back to offences committed on a series of dates in December 2001, for dishonesty; unlawful taking of a motor vehicle; theft of a car (x2), and disturbingly, 4 for burglaries. These must have been dealt with in the  Youth Court.

[8]    I also note that, after that time, there is evidence to suggest that this appellant took himself in hand. There is a reference from the Regent Training Centre Ltd in Whangarei stating that the appellant has a good work record and indeed, that he has real capabilities. That previous offending is reasonably separated in time, but it displays nevertheless some disturbing signs. The event on 27 November 2004 is equally disturbing, if not for any other reason that it displays an element of viciousness, which the accused must take in hand.

[9]    The third ground was one based on disparity. It seems that one of the co- offenders has obtained a sentencing indication of community service. It seems though, following inquiries made by Mr Eckard, that there is a simple explanation  for this in that the co-offender is not thought to have kicked the victim and hence a lesser charge has been laid.

[10]   The fourth ground involves a comparison of other cases relating to the same offence. I was referred to a series of some seven cases, where the net sentences ranged from 18 months to 3 years: R v Fuimoana CA276/95 27 July 1995, R v Fargher CA299/94 14 February 1995, R v Gibson CA18/92 11 May 1992, R v Henry CA286/90 22 February 1991, R v Beagley CA173/93 7 September 1993, R v Heti CA19/90 2 November 1990, R v Smylie CA19/90 2 November 1990. It has always been difficult to evaluate these cases in terms of assessing the comparative violence, but my impression is that the offending in this case was not as bad as that involved in any of the cases referred to above. Be that as it may be, I am satisfied that the  starting point adopted by the Judge, namely 13½ months, is very much at the lower end of offending as indicated by those cases.

[11]   My impression is that, indeed, this is a lenient sentence, and, although it may not have been articulated by the Judge, he intended to and did impose a lenient sentence, perhaps encouraged to some extent by his appreciation that the appellant was a first offender.

[12]   I am satisfied that the sentence imposed by the learned Judge was not manifestly excessive, nor wrong in principle and if anything, was probably a lenient sentence.

Home detention

[13]   The final matter is the question of home detention. Apart from noting that leave was declined, the sentencing notes did not contain any further information about the decision to do so. Section 97(1)(3) of the Sentencing Act 2002,  as amended following the amendment of the Act in 2004, states:

(3) The court may grant the offender leave to apply to the New Zealand Parole Board under section 33 of the Parole Act 2002 for home detention only if the court is satisfied that it would be appropriate to grant leave…

[14]   Having discussed this matter at some length with counsel, I am satisfied that it would be appropriate to grant leave for the appellant to apply for home detention taking into account:

[a]The nature and seriousness of the offending which, whilst bad, in the sense that it is a bad from of offending, it would not appear to have been within the more serious cases within that category.

[b]The second matter to consider is the circumstances and background of the offending. In this case there is the offending in 2001, with nothing from then until the present offending. There is a good work record  and indications that the appellant has ability. Importantly, it seems that he is in a position to commence a painting and decorating apprenticeship with his uncle in New Plymouth. Furthermore, he would be able to live with his uncle in New Plymouth. It is clear that the appellant has significant support from the family and I see the arrangement with the uncle as being part of that general support.

[15]   The final matter so far as the application for leave is concerned, are the matters contained in a short victim impact statement, which records that the victim received injuries which resulted in him being taken to Whangarei Base Hospital for treatment; that the matter was unprovoked, and that he still cannot understand why  he was attacked. So far as I can see, this does not provide any basis for considering that leave should not be granted.

[16]   In my view, this appellant will spend some 2 months in prison if he is granted home detention. That would be a short, sharp reminder that his behaviour on this occasion was totally unacceptable, and that the community will have none of it. If, however, and that is of course a matter entirely for the Parole Board, he is granted home detention, then the background that I have referred to seems to me to indicate that this would provide an appropriate outcome; not only would he be under the

supervision of officials, but also his family, and he would be removed from his present environment which, as far as I can see, would be no bad thing. He would also be in employment.

[17]Accordingly I consider leave should be granted to apply for home detention.

Result

[18]   The appeal is allowed to the extent that the appellant is granted leave to apply for home detention pursuant to s97(3) of the Act.

[19]   For the reasons which I have indicated, I do not consider that this is a case where the sentence should be deferred pending the application.