R v Waihape HC Gisborne CRI 2010-016-240

[2010] NZHC 2160

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2010-016-240

QUEEN

V

VERNON PERCY MEI WAIHAPE

Hearing:         7 December 2010

Counsel:         R J Collins for Crown

N H Wright for Prisoner Waihape

Sentencing:     7 December 2010

SENTENCING NOTES OF MILLER J

[1]      Mr Waihape, you appear for sentence today on one charge of injuring with intent to injure, to which you pleaded guilty after your first trial on a more serious charge was aborted.  I was the trial Judge, and when the case concluded I had heard from almost all of the Crown witnesses, including the two complainants, both of whom are police officers.  For sentencing purposes you have accepted that I have heard the facts of the matter.  You can remain seated for now if you like.

[2]      The facts are that on 29 January 2010 you were walking with your father, Vernon Daveron, along Ranfurly Street.  Mr Daveron was wearing a Mongrel Mob T-shirt and leading a bulldog.  The two complainants, Detective Ingoe and Constable Luton, were driving along Ranfurly Street, on their way to interview witnesses in

another matter.  Both were in plain clothes, but you were well aware that they were

R V WAIHAPE HC GIS CRI 2010-016-240  7 December 2010

police officers.  As they drove past they were met with loud abuse from Mr Daveron. I accept that you did not participate in this abuse.  They turned their vehicle around and pulled up beside you and Mr Daveron.  They asked him to calm down and to stop his abuse, which was causing public disturbance.   He ignored them and continued the abuse, and was warned that he would be arrested if he continued.

[3]      Detective Ingoe then got out of the police car and informed Mr Daveron that he was under arrest.  Mr Daveron walked away and the detective followed him and placed his hand on Mr Daveron’s shoulder.  Mr Daveron knocked his hand away and raised his hands as if to fight, so he was pepper sprayed.  The spray appeared to have no effect on him.

[4]      In some point of this process you were asked to remove the dog which you duly did.  At that point however, your co-operation ended.  Constable Luton had got out of the police car and joined Detective Ingoe in an attempt to arrest Mr Daveron. As they did that, you struck Detective Ingoe on the back of the head, causing him to fall to the ground.   You grabbed his tie and used it to control him, effectively strangling him.   He offered no resistance.   His evidence was that he briefly lost consciousness.  You have not accepted that, but it is the evidence, and I accept it.  As you held him by the tie and he lay on the ground, you also punched him in the head a number of times.  You do not accept that either, but it is the evidence of the officer and the evidence of the only lay witness definitely tends to confirm that, although she did not actually see the punches land because she was looking at your back.  I accept that it cannot be known just how many punches there were.  But the point was that you chose to punch the officer when he was effectively helpless on the ground.

[5]      At  the  same  time,  Constable  Luton  was  also  having  difficulty  with Mr Daveron, who knocked him to the ground and punched him repeatedly in the head.

[6]      Before he got out of the car Constable Luton had called for back-up, which arrived very quickly, possibly within about a minute.  Only when the reinforcements arrived did you release your grip on Detective Ingoe.  And from that point you co- operated with the police.

[7]      Detective Ingoe suffered bruising to the throat, making it difficult to swallow. He had a lump to his head and described various cuts and bruises.  Ms Wright makes the submission that the photos suggest his injuries were minor.  I don’t accept that as a general proposition because photographs commonly do not reveal the full extent or seriousness  of  blows  of  this  sort.     I  observe  too  that  you  must  take  some responsibility for what happened to Constable Luton, who probably would not have been overcome, had Detective Ingoe been able to help him to arrest Mr Daveron.  I observe also that Detective Ingoe says in his victim impact statement that he has left the police, largely for  other reasons, but this  attack was one of the things that influenced him.

[8]      Your explanation was that you intervened to assist your father.  I accept that. You were not responsible for the initial abuse, and it was Mr Daveron’s actions alone that led the officers to make the arrest.   But as I have said, you were well aware that these were police officers who were arresting Mr Daveron.  That means he was not at risk, and there was no need to protect him.  All he had to do was to submit to arrest and he would have come to no harm.  Further, you knew why they had stopped – because of the abuse – and that they had acted reasonably by asking him to stop it, before trying to make an arrest.  So you knew they were acting in the course of their duty.  Whether you thought that it was right of them to intervene in the circumstances, whether you thought they should have overlooked Mr Daveron’s behaviour, is really beside the point.

[9]      Turning to your personal circumstances, you are now 21.  At the time of the offending you were living at Ranfurly Street and you had just finished your seasonal employment in the horticultural industry.  The probation officer characterises you as a prospect for the Mongrel Mob, although you deny that.  You are at least in good standing with them.   Your grandmother describes you as a gentle person, and the probation officer as a boy in a man’s body.  You do not consider yourself a violent person, and you did act impulsively in backing-up your father.  There is no evidence that you have a harmful pattern of alcohol or drug use.   You do have previous convictions, for which you have received sentences of home detention, and on other occasions community work and briefly imprisonment.  On 19 November 2007 you were  convicted  of  wounding with  intent  to  injure,  which  earned  you  the  home

detention sentence.  It was a serious incident of its type, but you were a party only, which explains the lenient sentence.   Your only other conviction was for wilful damage on 28 April 2010 at which time you were in custody on the present matter since your arrest.  I am told that you wrote on a desk at the police station.

[10]     Turning to sentencing principles, the Court is guided by the three bands that are contained in R v Harris.[1]   They focus on the extent of the injuries, which in this case were moderately serious.

[1] [2008] NZCA 528.

[11]     But sentences in any given case may need to be adjusted having regard to other aggravating factors.  This offending was characterised by several such factors; substantial  violence,  with  a  number  of  punches  being  inflicted  unnecessarily in circumstances where the officer was not resisting, attacking the head, and the fact

that the complainants were police officers.[2]

[2] R v Williams CA177/96 at [3].

[12]     I have considered a number of comparable cases which I will list in my sentencing notes.[3]     They lead me to adopt a starting point of three years imprisonment.

[3] Burchell v R [2010] NZCA 311, Winklemann v R [2010] NZCA 215, Neho v R [2010] NZCA 8.

[13]     The only aggravating factor is your previous conviction for a similar offence. Having regard to your secondary role in that offence however, I will not increase the sentence on account of it.

[14]     In mitigation, I will give you some credit for your guilty plea.  You offered to plead to the present charge some two weeks before trial, but a summary of facts could not be agreed.  In March you had offered to plead to aggravated assault.  The complainants were required to give evidence, so the allowance must be modest. Nonetheless, some recognition is appropriate.  And I will allow you four months, or ten per cent.

[15]     I note too that your criminal record is short and there are two very positive references from employers which I have reflected upon.  They indicate that you have

the potential to make a success of your life.  I am inclined to see some potential in you, partly because of that and partly because on this occasion, as well as the previous offence, you were not the instigator.  You acted out of a misplaced sense of loyalty.  I have considered a letter from you in which you ask that the Court see you not as some violent animal but as a person who made a stupid decision that day, and obviously someone who needs to stop and think before making decisions.  You have expressed the hope that you will get some kind of counselling or anger management programme in prison, and I share that hope.  I do think it will be a useful thing for you.  If you can avoid getting into these situations you do seem to have potential.  I note that your mother is in Court today.  She has arranged a job for you in Napier and thought it would be a good thing so far as possible you were away from the influence of members of the Mongrel Mob.  So I will make a further allowance of five months for those factors.

[16]     But the sentence must be imprisonment.  You have chosen to attack police officers  in  the  execution  of  their  duty  and  a  sentence  of  imprisonment  must inevitably follow.

[17]     Your sentence is two years and three months imprisonment. [18]      You may stand down.

Miller J

Solicitors:

Elvidge & Partners, Napier for Crown