R v Pirini HC Napier CRI-2010-020-2954

[2011] NZHC 945

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2010-020-2954

QUEEN

v

LANCE CHRISTOPHER PIRINI

Hearing:         18 August 2011

Counsel:         N Graham for Crown

A Malik for Prisoner

Judgment:      18 August 2011

SENTENCING NOTES OF MILLER J

[1]      Mr Pirini,  you  appear for sentence on  one charge of aggravated assault, contrary to s 192(1)(c) of the Crimes Act 1961, and three of theft of property worth less than $500.

[2]      You were originally charged with aggravated injury and unlawfully taking a motor vehicle, but those charges have been withdrawn.  I emphasise that at the outset because this is a case of an extremely serious assault on a police officer in the execution of his duty.   It calls for a stern sentence, but I am constrained by the maximum penalty of three years imprisonment for the aggravated assault.  You have heard me express concern about that today in my discussions with Crown counsel.

[3]      The  facts  are  as  follows.    At  the  time  of  the  offending  you  were  in  a relationship with the co-offender, Ms Leaf.  On 19 July 2010 the two of you were

driving the car in Taupo, where you stole $71.06 worth of petrol.  On 27 July, in

R V LANCE CHRISTOPHER PIRINI HC NAP CRI-2010-020-2954 18 August 2011

Napier, you stole shoes with a value of $149.90.  You were chased to the vehicle and you drove off.  You then drove to Arkwright’s Dairy, where you took a punnet of margarine, a loaf of bread, 2 litres of milk and two packets of cigarettes without paying.  The combined value of these items was $30.00.  You were again chased, but Ms Leaf was waiting in the car with the engine running to make your escape.

[4]      Senior Constable Alan Daly, the Clive Community Constable, heard a Police announcement about you and pulled his car to the side of the road in case you drove by.  You did, and he followed.  You drove the car into a “no exit” street and Senior Constable Daly parked his vehicle in front.

[5]      You gave the Senior Constable the car keys at his request, then you got out of the car appearing calm and relaxed.   Without warning you punched him at least twice to the head.  He managed to grab you and the two of you fell to the ground with you on top of him.  He managed to get to his feet.  At this point Ms Leaf got out of the car and threw his radio so he could not call for help, smashing it.  You and the Senior Constable again fell to the ground with you on top of him.  She stomped on his eye with the hard rubber sole of her shoe, causing him to lose vision in the eye and to release you.

[6]      He cannot recall whether either of you inflicted further stomps or punches. He could not see.   But neighbours witnessed you lying on the Senior Constable punching him in the head and Ms Leaf kicking him.  You yelled that you wanted the keys back and one of you felt his pockets for them.  The two of you removed his wallet,  keys  and  cell  phone  from  his  pockets,  smashing  the  phone  and  either throwing or placing his wallet and keys up the driveway.   You were eventually restrained by the Police  and  neighbours.    You  had  to  be pulled  off the Senior Constable.

[7]      An  inference  is  available  from  the  summary  of  facts  that  there  was premeditation, in that you lulled the officer into thinking you would comply.  I am not going to draw that inference, because it is also reasonably possible that it was spontaneous.  It appears you had been drinking.   However, the actual offending was concerted and purposeful, designed to disable the officer and retrieve your keys and

allow you to escape, and it must have to gone on for some little time, although I

accept one cannot be sure just how long.

[8]      You pleaded guilty to the present charges on 5 July 2011 on leave being granted to amend the indictment to substitute the lesser charges on which you are now being sentenced.  An offer had been made to plead to aggravated injury on 2

September 2010.

The victim impact statement

[9]      The impact of the attack on the Senior Constable was extremely serious.  He suffered a fractured eye socket, which required surgery, multiple facial abrasions, severe swelling in his left eye and blurred vision in his right, nerve damage to the right side of his face and abrasions to lips, hands and knees.   He underwent three operations on the eye socket, and during the third he almost died from a reaction to the anaesthetic.  He was on life support, and understandably found the surgery very stressful.  Regrettably, it was not completely successful.  He has permanent damage to his vision and his eye has not regained its natural appearance.  He was formerly an active sportsman but I understand he cannot train or compete.  The left side of his face experiences numbness, although there has been some improvement.   He still experiences pain and initially suffered severe headaches.  He had to take six months off work and has trouble sleeping.  I am told that he has returned to his work as a Community Constable, but encounters certain difficulties in his work.  His injuries obviously affected his family.

The co-offender’s sentence

[10]     Ms Leaf pleaded guilty to conversion of a vehicle, theft (of the petrol) and aggravated wounding, which carries a maximum of 14 years imprisonment.  White J sentenced her.   He took the aggravated wounding charge as the lead offence and used R v Taueki as the guideline for the offending, noting the following factors were present:  extreme violence, serious injury, attacks to the head, multiple attackers and attack on a public official.  The attack was “unprovoked, mindless and violent”.  He

took a starting point of eight years and six months.  He imposed a sentence of six months for the conversion of the motor vehicle and a concurrent sentence of two months for the theft of the petrol.  The sentence of six months was concurrent with the wounding sentence, but he imposed an uplift of three months imprisonment to account for the totality.  She was entitled to a discount for her guilty plea, and given a final sentence of six years and seven months imprisonment.

The pre-sentence report

[11]     There is a positive pre-sentence report for you that suggests this offending was out of character.   It records that you are aged 32, and you have no previous convictions  for  violence.    Your  10  previous  convictions  involve  drink/driving, breach of sentence conditions, driving while disqualified and unlawfully taking a motor vehicle.   You have an alcohol problem but your motivation to address it is considered to be high.  You have strong family support.  Your risk of reoffending is said to be moderate.  A sentence of imprisonment of less than two years duration is recommended.  I should say at this point that I do accept counsel’s submission that you have real prospects of rehabilitation.

[12]     I note that you have been in custody since July 2010, although you were sentenced  to  nine  months  on  other  charges  in  the  meantime.    Those  concern unrelated and earlier offending;   unlawfully taking a motor vehicle, driving with excess alcohol, breaching community work and supervision.   The sentence that I impose today is imposed on the assumption that it will be cumulative upon that sentence.

Starting point

[13]     I also propose to employ cumulative sentences for the dishonesty and violent offending.   Although connected, these offences are sufficiently different in nature and circumstance to justify that course.

[14]     There is  a  sense in  which the sentencing is  a  very difficult  one.    Your culpability is not in my opinion very much less than that of Ms Leaf, but she pleaded guilty to a far more serious charge.   That is so because she caused the serious damage to the officer’s eye and the Crown accepts that you caused only cuts and abrasions.  Still, it was a joint affair in which you played a major part, and you must take material responsibility for the serious harm that resulted.   You committed a serious assault against the officer;   you initiated it, you punched him many times about the head when he was on the ground.   Importantly, you continued although you must have known that Ms Leaf had already kicked him once in the head.  You heard me debate that with counsel this morning.  It is an inference that I proposed to draw from the summary of facts.   It seemed to me inescapable.   After taking instructions counsel has advised me that you elect not to dispute that inference for today’s purposes.  You may feel that it is unfair perhaps, perhaps you just want to move on with your life.  But it seems to me that it is a fair inference and I propose to draw it.   To what I have already said I add that the offending was completely unprovoked and you acted without warning.  Were it open to me to do so today, I would impose a significantly longer sentence than I am able to do.

[15]     It is in my opinion difficult to think of a more serious offence of its kind than this one.  Apart from the matters I have just outlined, it is appropriate to have regard to the sentence imposed on Ms Leaf, because while the charges to which she pleaded were   different,   parity   of   treatment   of   co-offenders   remains   an   important consideration.  I have examined the cases that counsel referred to me, but I find very little guidance in them.   I adopt a starting point of three years imprisonment, the maximum available.

Aggravating and mitigating factors

[16]     There  are  no  aggravating  factors  that  have  not  already  been  taken  into account in selecting the starting point.  I do not treat your previous convictions as an aggravating factor, although they do deprive you of the opportunity to plead previous good character.

[17]     I accept that you feel genuine remorse for the harm that was done to the police officer.  I have read the letter which you wrote me today, and I accept what you say in it.   I wish to emphasise again that I accept that you do have good prospects of reform.   These are important considerations and they may move the Parole Board in due course.   But as Ms Graham submitted today, deterrence and denunciation are the dominant considerations at sentencing in this case.

[18]     An allowance must also be made for your guilty pleas.  Coming as they did soon before trial, the allowance would normally be limited.   But as I have said earlier, you pleaded guilty on an amended indictment and an offer had been made to plead to a similar charge not long after arrest.  The Crown accepts that an allowance of up to 25 per cent is available.   I am going to allow a total of 10 months for remorse and the plea.

[19]     The deductions that I will allow result in a sentence of two years and two months for the aggravated injury charge.

The theft charges

[20]     To that must be added a short sentence for the four thefts, which although not serious offences in their own right did form a minor spate of offending, of a sort that calls for a deterrent sentence.   Recognising that you have pleaded guilty to those also, I fix a total sentence of three months imprisonment.

[21]     That  results  in  an  effective  sentence  of  two  years  and  five  months imprisonment.

[22]     I have said that (I have assumed)* today’s sentence is to be cumulative upon the sentence you are already serving.  On the assumption that that means you will not be given credit, under the sentence I am imposing today, for time spent in custody on that sentence, I have considered whether the sentence I am imposing today should be adjusted for totality.   For the reasons I have given relating to the seriousness of this offending, I am satisfied that no adjustment is warranted.

[23]     The Crown does not seek a minimum period of imprisonment and I will not impose one.

Sentence

[24]     Mr Pirini, your sentence on the charge of aggravated assault is two years and two months imprisonment.  You will serve a cumulative sentence of three months imprisonment on each of the theft charges, those sentences to be served concurrently as among themselves.

[25]     You may stand down.

Miller J

Solicitors:

Crown Solicitor’s Office, Napier for Crown

*Added after sentencing.

Solicitors: