Pui v Police
[2021] NZHC 352
•3 March 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-463-141
[2021] NZHC 352
BETWEEN LEON DAVID TEKAHA RATAHI PUI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 February 2021 Appearances:
J W Howell for Appellant E F Collis for Respondent
Judgment:
3 March 2021
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 3 March 2021 at 2:30 pm
Registrar/Deputy Registrar
Solicitors:
Adams Law, Tauranga Crown Solicitor, Tauranga
PUI v POLICE [2021] NZHC 352 [3 March 2021]
[1] On 3 November 2020, Judge Harding in the District Court at Tauranga1 sentenced Mr Leon Pui (the appellant) to concurrent terms of 23 months’ imprisonment on one charge each of aggravated injury and assault of police constables2, and a further concurrent term of six months’ imprisonment on a single charge of escaping lawful custody.3
[2] The aggravated assaults were second-strike offences and the appellant will accordingly serve the full term of his sentence on those charges without the possibility of parole.4
[3] The appellant now appeals against the sentence imposed saying that the starting point adopted by the Judge was too high, resulting in the end sentence being manifestly excessive. He submits that an end sentence of 20 months’ imprisonment ought to have resulted.
Offending
[4] The Police summary of facts notes that the appellant is a patched member of the Bay of Plenty Mongrel Mob. At about 3.00 am on 22 March 2020, the appellant was gathered with other members of his gang on The Strand in Tauranga. He had been drinking alcohol and was “moderately intoxicated”.
[5] One of his gang associates had been arrested and handcuffed by Police for disorderly behaviour likely to cause violence.
[6] The appellant made several attempts to intervene in the arrest of his associate by becoming verbally aggressive and trying to prevent the constables from putting the arrested man in their vehicle. Police warned the appellant several times that he would be arrested if he did not desist.
[7] When a constable stepped between the appellant and the officer arresting the gang associate, the appellant began repeatedly punching the police constable around
1 New Zealand Police v Pui [2020] NZDC 22757.
2 Crimes Act 1961, s 191(1)(b) and s 191(2). Maximum 7 years and 3 years imprisonment.
3 Crimes Act 1961, s 120 (c). Maximum 5 years imprisonment.
4 Sentencing Act 2002, s 86C(4)(a).
the head, hitting him at least eight times and forcing him to the ground. When on the ground, the constable attempted to take hold of the appellant’s leg, and the appellant kicked the constable on the body. The constable then drew his taser, and the appellant fled.
[8] Another constable chased him, and the appellant turned and swung a punch at him narrowly missing his head.5 The pursuing constable then used his taser, to subdue the appellant, and he was arrested and taken into custody.
[9] The first constable who the appellant had punched in the head, forced to the ground and kicked, was hospitalised and found to have suffered concussion. He suffered a split eyebrow, swelling to his right eye, and grazing to his right elbow. It was also suspected that he suffered fractures to his eye socket and nose, however these suspected injuries could not be confirmed by the hospital due to the progress in his healing process. As a result of his injuries he was unable to work for five weeks, and following his return to work had to be placed on light duties.6
[10] Although it is not mentioned in the summary of facts, I infer that the appellant had been placed under arrest before he fled, resulting in the charge of escaping lawful custody.7
The Judge’s sentencing decision
[11] Having reviewed the facts of the appellant’s offending as set out in the prosecution summary of facts, the Judge observed that the appellant was “someone with a history of prior convictions for violence and for attacking the Police”. The Judge noted the appellant had convictions in 2014 for threatening to kill, assaulting police, and three other convictions for resisting Police, as well as a 2012 conviction for robbery by assault.8
5 Section 120(c). Maximum penalty five years’ imprisonment.
6 Crimes Act 1961, s 191(2). Maximum penalty seven years’ imprisonment.
7 Section 192(1)(b). Maximum penalty three years’ imprisonment.
8 New Zealand Police v Pui [2020] NZDC 22757 at [4].
[12] The Judge noted that the pre-sentence report said that the appellant maintained that, as a result of his intoxication at the time of his arrest, he had no memory of his actions for which he was charged. The Judge also noted that the appellant had finally accepted that he cannot handle alcohol, and that much of his offending has been precipitated by the use of alcohol. The Judge commented that although it was said on the appellant’s behalf that he was extremely remorseful and truly sorry, the pre-sentence report only noted that the appellant was regretful for the injuries that resulted, and there was no suggestion in the pre-sentence report that he was extremely remorseful.9
[13] Having administered and explained the second-strike warning required by reason of the appellant’s previous conviction for a serious violence offence in 2012,10 the Judge noted that the appellant’s counsel accepted that a sentence of imprisonment was appropriate. The Judge also noted Mr Howell’s submission that a starting point of two years, three months’ imprisonment was appropriate, which was based on counsel’s submission that the appellant’s offending fell at the higher end of band two or the lower end of band three in Nuku, and that the cases of Wright and Wynd, involved more serious offending11
[14] The Judge however disagreed. Taking the aggravated injury charges as the lead offending, he adopted a starting point of three years’ imprisonment on the basis that the offending involved a “deliberate and sustained attack against police officers”, as well as a number of other aggravating features.12 The Judge explained that he would impose concurrent sentences in respect of all charges as the offending arose from a single sequence of events, and also because “the offending against the other officers amounts to a further aggravating factor to be taken into account here.”13
[15] The Judge then added an uplift of three months on account of the appellant’s previous convictions, and allowed discounts totalling 40 per cent (which are not challenged on appeal) in respect of the appellant’s cultural and family background, his
9 At [13].
10 Sentencing Act 2002, s 86C.
11 New Zealand Police v Pui [2020] NZDC 22757 at [10], referring to Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; R v Wright [2014] NZCA 119; and Wynd v Police [2013] NZHC 1270.
12 At [15].
13 At [11].
“late” guilty plea, and “such remorse as is evidenced”.14 This produced an end sentence of 23 months’ imprisonment on the assault charges, with a concurrent six month sentence imposed on the escaping lawful custody charge.15
The Appeal and Submissions
[16] Mr Howell for the appellant contends that the appropriate starting point was between 27 and 33 months’ imprisonment, as opposed to the 36 months adopted by the Judge. He submits that the Judge erred in treating the aggravated assault as an aggravating feature of the aggravated injuring offending. Had the Judge not erred in these respects, Mr Howell submits, an end sentence of no more than 20 months would have resulted. As the appellant is required to serve the whole term of his sentence without parole, the sentence actually imposed, being three months longer than the 20 months that counsel submits ought to have been imposed, results in a sentence that is manifestly excessive.
[17] Ms Collis for the Crown submits that the starting point adopted by the Judge was within range, having regard to comparable cases. She submits that although the case of Wright,16 where a starting point of three years was upheld by the Court of Appeal, is broadly similar to the present, an important distinction exists. This is, she submits, that the appellant here assaulted two police officers, and that he was convicted of more serious charges which carry a maximum penalty of seven years imprisonment
– whereas the single charge in Wright was one of injuring with intent, which carries a lesser maximum of five years imprisonment.17
[18] Crown counsel submits that it was entirely appropriate for the Judge to account for the offending against the second police constable either as part of determining the starting point for the two assaults on the police, or as an uplift. She submits the Judge was entitled to impose a moderate uplift for the second assault charge, and notes that the appellant does not in fact take issue with the uplift. In any event, counsel submits that the total discounts allowed to the appellant in respect of personal mitigating
14 At [15].
15 At [16].
16 R v Wright [2014] NZCA 119.
17 Crimes Act 1961, s 189(2).
factors were generous, such that no issue can be taken with the end sentence, which is not manifestly excessive.
Approach on Appeal
[19] This first appeal against sentence is brought as of right pursuant to s 244 of the Criminal Procedure Act 2011. Pursuant to s 250 of the Act, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed and that a different sentence should be imposed.18 Otherwise, the appeal must be dismissed.19
[20] The Court on appeal does not simply substitute its own evaluation of the appropriate sentence. Rather, it must be satisfied there was an error “whether intrinsically, or as a result of additional material submitted”20 on appeal, in the sense that the end sentence was manifestly excessive having regard to ordinary sentencing principles,21 and only then determining whether another sentence should be imposed.22 As Crown counsel correctly submits, the ultimate focus in considering whether a different sentence should be imposed is on the end sentence imposed.23
Discussion
[21] As regards the appropriate starting point, Mr Howell says that the starting point adopted should have been lower than that adopted in the cases to which the Judge referred at sentencing – Wright and Wynd – as he submits the offending in those cases was comparatively more serious than the appellant’s.
[22] As noted, Wright involved a single charge of injuring with intent to injure, the maximum penalty for which is five years’ imprisonment; that is, two years less than the maximum penalty for the lead offence here.
18 Criminal Procedure Act 2011, s 250(2).
19 Section 250(3).
20 R v Shipton [2007] 2 NZLR 218 (CA) at [139], approved after the commencement of the Criminal Procedure Act 2011 in Tutakangahau v R [2014] NZCA 279 at [30].
21 Palmer v R ; Kumar v R ; Tutakangahau v R [2014] NZCA 279 at [35]-[36].
22 Tutakangahau v R [2014] NZCA 279 at [30]-[35].
23 Islam v R [2020] NZCA 140 at [32].
[23] The brief facts of that case are as follows. Mr Wright was standing outside a public library when a constable drove past him and he shouted obscenities at the officer. The officer stopped the car and approached Mr Wright, who had by that point entered the library. Mr Wright nevertheless continued his tirade. He was arrested for disorderly behaviour, handcuffed, and taken to the Police station. Once one cuff was removed, Mr Wright punched the officer in the mouth, causing him to fall backwards on to the concrete floor and stunning him. Mr Wright then continued to punch the officer in the head and face, landing over thirty blows, while the police officer tried to cover his head and face with his hands. It took two officers and the use of a broom and pepper spray to restrain him and place him in a police cell. The attack involved a high level of violence which had continued for several minutes and resulted in the police officer suffering extensive cuts and bruises over his face, head and forearms, and lacerations around his left eye that required stitching. Following the assault the constable suffered considerably from delayed concussion. As a result of his injuries and concussion the constable was unable to work for two months and returned to work on a graduated and part-time basis.24
[24] On a Solicitor-General’s appeal, the Crown submitted that, applying Nuku,25 the Judge ought to have identified a starting point of no less than four years, as opposed to the three year starting point adopted.26 The Crown said the offending ought to have been placed at the upper end of band three, involving, as it did, four Taueki culpability factors – attacking the head, use of a weapon (the cuffs still wrapped around his wrists), causing serious injury, and assault on an officer in the execution of his duty.27
[25] The Court of Appeal disagreed, considering that the starting point of three years adopted was not too low, and noted that it was was within the range the Crown had contended for at sentencing. The Court of Appeal found that although a handcuff remained attached to the defendant’s wrist and may have contributed to some of the injuries inflicted on the officer, as Mr Wright’s offending was not categorised in terms
24 R v Wright [2014] NZCA 119 at [3]-[9].
25 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
26 R v Wright [2014] NZCA 119 at [18].
27 At [18].
of the charge he faced, or in terms of the summary of facts, as an attack with a weapon, it would be wrong to categorise his actions as such for sentencing purposes.28
[26] While the offending in Wright is broadly similar to that of the offending against the constable who the appellant punched around eight times in the head, I agree with Mr Howell that the offending in Wright was more serious having regard to the focussed and extended attack to the head, which resulted in serious injuries. Mr Howell is correct that this would tend to indicate the adoption of a starting point lower than the three years adopted in Wright.
[27] However, it is important to note that Wright was a Solicitor-General’s appeal, such that the Court of Appeal, in upholding the starting point, can be taken only as having found that the starting point adopted was not so low as to result in a manifestly inadequate sentence being imposed. In particular, the Court of Appeal did not make any comment to the effect that the starting point was stern or at the upper end of the available range. The context in Wright of the Solicitor-General’s appeal, and the lower maximum penalty of the charge involved, means a direct comparison between that case and the present on the basis that they are equivalent is not available.
[28] I consider that Asher J’s decision in Wynd is of greater assistance in this respect.29 Mr Wynd was at a bar with workmates in the early hours of the morning. The victim made comments to a woman at the bar to which Mr Wynd took exception. Becoming aware of this, the victim had hidden in the toilets before attempting to go home. Mr Wynd, who had been waiting for the victim, applied his martial arts training to kick the victim in the head. As the victim laid crumpled on the ground, Mr Wynd proceeded to punch him several times about the face and head, also rubbing an empty beer bottle in the victim’s face. The victim was knocked unconscious, suffered a severe wound to the scalp, had swelling about the face and eyes, and had to spend six days off work.30
28 At [19]
29 Wynd v New Zealand Police [2013] NZHC 1270.
30 At [1]-[6].
[29] Mr Wynd, to whose offending Nuku did not apply, appeared for sentence in the District Court. The Judge, applying Taueki, identified the offending as aggravated by the extreme, unprovoked, and prolonged nature of the violence directed at the victim’s head; the aspect of premeditation; the relatively serious injuries inflicted; the use of a bottle; and the vulnerability of the victim. A starting point of two years and nine months’ imprisonment was adopted.31
[30] On appeal, Asher J agreed with the Judge’s overall assessment of the aggravating features of the assault and its seriousness, while noting an aspect of double counting in the Judge’s reference to serious injuries and vulnerability. He observed that Mr Wynd was fortunate to have been convicted of only wounding with intent to injure, and not on a more serious charge.32 The Judge considered that, had Nuku applied, the offending would have fallen within band three, and that “the starting point fixed by the Judge of two years and nine months was well within the range and could have been higher.”33
[31] I respectfully agree, and also agree with Mr Howell that the appellant’s offending against the constable he punched was less serious than the offending in Mr Wynd’s case, insofar as it involved no premeditated aspect of lying in wait for the victim, a less severe measure of violence, and no use of a weapon. On the other hand, here there is present the additional element of this being an assault against a police officer in the course of carrying out his duties, and the extent of the constable’s injuries here, which were considerably more severe than those inflicted on Mr Wynd’s victim, whose short term severe injuries passed quickly. Here the constable was left with an extended concussion that impaired him from working for some time. In this respect, I note that while “it can sometime be a matter of luck how bad the resulting injuries are”34 after an assault, the Court of Appeal has rejected the “submission that the assessment of criminality should focus on the conduct of the attacker and not on the consequences for the victim.”35
31 At [8], citing R v Wynd DC Auckland CRI-2012-005-14937, 4 April 2013.
32 At [10].
33 At [13].
34 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [30].
35 At [30] fn 32, citing R v Taueki [2005] 3 NZLR 372 (CA) at [31(c)].
[32] A difficulty which arises when making such comparisons, despite the features common to each of these violent acts, is the different charge in each case, with its differing maximum penalty, and different elements relating to criminal intent. Here the appellant’s assault on the constable was undertaken for the purpose of facilitating the flight of another offender following the commission of an imprisonable offence. That aspect of criminal intent was not present in the cases of either Wright or Wynd.
[33] On an overall assessment, I consider that additional aggravating features of the appellant’s offending, by involving offending against a police officer for the purposes of facilitating the flight of an associate, makes the appellant’s offending more culpable and serious than that of Wynd.
[34] The maximum penalty for offending under s 191 of seven years’ imprisonment, compared to the injuring with intent to injure offending in Wright, which was charged under s 189(2) which carries a five year maximum penalty, indicates that the appellant’s offending is to be considered as inherently relatively more serious than Mr Wright’s offending against the police officer in that case. While the violence and duration of the assault in Wright was more serious than the present case in terms of the harm intended and done, the offending in Wright was not undertaken in an attempt to facilitate his flight or the flight of another offender. That additional element of intent involved in the appellant’s offending, and the inherently more serious nature of his offending as evident by reason of the maximum penalty provided for the offence, points towards and justifies the adoption of a higher starting point in this case. Such an approach is consistent with the sentencing principle contained in s 8(b) of the Sentencing Act 2002 which requires the court to “take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences”.
[35] In Wynd the charge involved carries the same maximum penalty as the lead charge here and the offending must therefore be taken as having the same inherent seriousness. However, for the reasons I have explained, I consider the appellant’s offending to be more serious than the offending in Wynd.
[36] For these reasons I am not satisfied the three year starting point adopted by the Judge for the assault on the constable was excessive. In any event, the starting point is consistent with the placement of this offending at the upper end of band two or the lower end of band three in Nuku, as was submitted by Mr Howell at sentencing and as was adopted by the Judge. This band placement is consistent with the moderately serious injuries inflicted in a sustained attack directed to the head of the victim, who was a police officer, and which was undertaken for the purpose of facilitating flight of an associate from the police. I also note the moderate connection with gang activity, and the overall culpability disclosed by the facts of the offending.36
[37] Nor can any criticism be made of the Judge having treated the rather less serious assault on the pursuing constable as an “aggravating factor” of this offending. This was merely the Judge’s way of constructing the sentence to include a necessary uplift for this further offence on a totality basis by making an adjustment to arrive at an overall starting point for the lead charge. The figure arrived at must also be taken as including, on a totality basis, the escaping lawful custody charge, as a further aspect of the offending which included the assaults on the police officers. That the Judge took the escape from custody offending into account in determining the starting point he adopted is apparent by him imposing a six month concurrent sentence in respect of that charge at the conclusion of the sentencing.37 As the three year starting point adopted would have been appropriate, even before acknowledging these necessary uplifts, the three years adopted by the Judge was in my view clearly not excessive.
[38] Accordingly, having regard to my finding that the starting point was not excessive and the generous discounts afforded to the appellant on account of personal factors and his guilty pleas, I find that the Judge did not err in the sentence he imposed, and I find that the appellant has not shown that the sentence imposed was manifestly excessive and that a different sentence should now be imposed.
[39]For those reasons, I shall dismiss the appeal.
36 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [37]-[45].
37 New Zealand Police v Pui [2020] NZDC 22757 at [16].
Result
[40]The appeal is dismissed.
Paul Davison J
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