Reedy v Police
[2019] NZHC 2435
•26 September 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-000317
[2019] NZHC 2435
BETWEEN JAIDE REEDY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 23 September 2019 Appearances:
T Clee for the Appellant
G J Fraser and M J Mortimer for the Respondent
Judgment:
26 September 2019
JUDGMENT OF HINTON J
This judgment was delivered by me on 26 September 2019 at 10.30 am
…………………………………………………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
Tudor Clee, Barrister, Auckland Meredith Connell, Auckland
REEDY v POLICE [2019] NZHC 2435 [26 September 2019]
[1] Ms Reedy was convicted and sentenced on eight charges arising from two separate occasions. The first set occurred on 31 January 2019:
(a)shoplifts (under $500);1 and
(b)common assault.2
[2]The second set occurred on 10 February 2019:
(a)shoplifts (under $500) x 2;3
(b)assault with a weapon x 2;4
(c)intentional damage;5
(d)possessing a knife in public place.6
[3] Ms Reedy appeals the sentence of Judge Ronayne given on 22 May 2019 in the Auckland District Court.7 The Judge sentenced Ms Reedy to two years and five months’ imprisonment.
[4] The issue is over the starting point. The Judge adopted a starting point of three years. Mr Clee, for Ms Reedy, submits an appropriate starting point is eight months’ imprisonment. Ms Fraser for the respondent accepts that the starting point adopted by the Judge was too high, but submits an appropriate starting point is 18 to 24 months.
1 Crimes Act 1961, s 223(d). Maximum penalty three months’ imprisonment.
2 Section 196. Maximum penalty one year’s imprisonment.
3 Section 223(d). Maximum penalty three months’ imprisonment.
4 Section 202C. Maximum penalty five years’ imprisonment.
5 Section 269(2)(a). Maximum penalty seven years’ imprisonment.
6 Summary Offences Act 1981, s 13A.
7 New Zealand Police v Reedy [2019] NZDC 9624.
Background
[5] The first offending occurred on 31 January 2019. Ms Reedy stole a sandwich worth $6.50 from a bakery. She then assaulted a member of the public, who tried to take a picture of her, by hitting the complainant around the head with her handbag.
[6] The second offending is more serious. It occurred on 10 February 2019. Around 10.15 am, Ms Reedy went into the Auckland City Mission Op Shop, took a dress and handbag, valued at $21, and left without paying. She left her own handbag in the store.
[7] Around 2.20 pm, she was sitting outside the same shop. The store supervisor recognised her, came out and questioned her about the theft. Ms Reedy became verbally aggressive and demanded the return of her handbag. The verbal altercation escalated and Ms Reedy pulled a meat cleaver from another handbag, presumably the handbag she stole, and again demanded the return of the bag she left behind. The supervisor, fearing assault, went back inside the store. Ms Reedy followed him. There was another employee inside the store. Ms Reedy continued to ask for her handbag and money she said it contained, brandishing the cleaver and advancing slowly on the complainants. The two employees were understandably frightened and kept a safe distance. Ms Reedy then smashed a chain securing a donation box and left the store carrying it. It contained $36.40. She was arrested a short time later.
District Court decision
[8] Judge Ronayne took a starting point of three years on the assault with a weapon charges, writing that it was a very intimidating event and was tantamount to aggravated robbery. He said he had to take into account s 8(d) of the Sentencing Act 2002, which requires the Court to impose a sentence near to the maximum if the offending is near to the most serious.
[9] The Judge then applied an uplift of two months for the 31 January 2019 offending, and another three months for Ms Reedy’s lengthy history of petty crime. Ms Reedy wrote a letter of remorse. The Judge noted this, and that she had had
challenges in her life. He gave a discount of two months for remorse. He then gave a discount of 10 months (or approximately 25 per cent) for a guilty plea made at the first opportunity. This came to two years and five months. The Judge imposed various concurrent sentences for all of the other charges, and these are not challenged on appeal.
Approach on appeal
[10] Under the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.8
[11] In deciding whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.9 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.10 The focus is on the end result rather than the process by which the sentence was reached.11
Discussion – starting point
[12] The sole issue in this appeal is the starting point, although if the starting point comes down, the guilty plea discount of 10 months will be proportionally reduced.12
[13] Both counsel submit that the starting point of three years is too high. Both counsel accept the starting point should be set by reference to the tariff case Nuku v R.13
[14] Nuku v R does not, on its face, cover sentences for assault with a weapon. Nuku does, however, apply to injuring with intent to injure,14 which has the same five-year starting point as assault with a weapon. Courts have applied Nuku to the latter charge
8 Criminal Procedure Act 2011, s 250(2).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
10 Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].
11 Tutakangahau v R, at [36].
12 The maximum discount being 25 per cent per Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
13 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
14 Crimes Act 1961, s 189(2).
on a number of occasions.15 I accept that Nuku applies, although the type of offences it traditionally covers all involve actual injury, so the guidelines should be applied cautiously in a case such as this where there was only threatened injury. I note Nuku has been applied in circumstances of threatened injury.16
[15]The tariff bands in Nuku are as follows:17
(a)Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.
(b)Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the Taueki aggravating factors are present.
(c)Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the Taueki aggravating factors are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.
[16] Judge Ronayne did not refer to Nuku, but from his starting point of three years and his reference to the need to impose a sentence near to the maximum for offending near to the most serious, it can be inferred he was placing the offending at the very top of band 2, or in band 3.
[17] Ms Fraser submits the present offending falls within band 2. She submits there are two aggravating factors here: being that the offence was in facilitation of another crime and the type of weapon used.18 (The respondent also suggested that vigilante action could be a third aggravating factor, but I do not see that as applicable.)
[18] The appellant places this offending in bands 1 or 2. Mr Clee queries though whether either of the aggravating features applies. He submits “use of a weapon” is
15 See R v Wereta [2017] NZHC 1762 at [14]; Hurinui v R [2014] NZCA 290 at [26]–[27]; and
Edmondson v Police [2015] NZHC 3184 at [10].
Hintin v Police [2015] NZHC 560 at [20]–[21].
17 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].
18 R v Taueki [2005] 3 NZLR 372 (CA) at [31](d) and (f).
inherent in the offence of “assault with a weapon”, so counting it as an aggravating factor would be double-counting. That would be true, but Ms Fraser clarifies that it is the type of weapon that is aggravating, referring to Taueki.19 I agree that the use of a meat cleaver, which has the potential to cause serious harm, is relevant to the severity of the offence. Also, it is not double-counting to treat facilitation of a crime as an aggravating factor, as the sentence imposed for the other contemporaneous offending was concurrent. I accept that the two aggravating factors referred to by Ms Fraser are properly taken into account.
[19] The appellant refers me to the 2008 decision in Leatherby v New Zealand Police as a comparable case.20 In that case, Mr Leatherby, who was heavily intoxicated, walked up to the victim in a room with other people, and struck him with a butcher’s knife, causing a small wound above the victim’s eye. Mr Leatherby claimed he had been harassed by the victim all day. The starting point was reduced to nine months on appeal. I note that this case predates Nuku, although neither counsel made anything of this.
[20] I consider the offending in this case more serious than in Leatherby, given the element of provocation in that case, as well as that this offending occurred in the context of committing other offending.
[21] The appellant also relies on Gollan v R.21 In that case, Mr Gollan threatened two finance company representatives with a baseball bat at the door of his home. They had come to repossess a car which they knew was a contentious issue. He swung the bat at them but did not make contact because they took evasive action. He called to his wife to bring the 12-guage and said he would blow them off the property. The Court of Appeal held a starting point of 12 months was too high, and reduced it to eight months, although they seemed to take into account personal mitigating features when doing so.22 Ms Fraser submits the present offending is more serious because the offending occurred in commercial premises where confrontation with the public was more likely, (as opposed to the defendant’s home) and because of the other offending.
19 R v Taueki [2005] 3 NZLR 372 (CA) at [31](c).
20 Leatherby v New Zealand Police HC Palmerston North CRI-2008-454-45, 10 September 2008.
21 Gollan v R [2013] NZCA 29.
22 At [74]–[78].
[22] I agree, for the reasons submitted by Ms Fraser, that the offending here is more serious than in Gollan, but there is not much in it. In Gollan there was a high chance of injury similar to here, perhaps more so as Mr Gollan appeared to be trying to hit the victims.
[23] I note that the Court in Gollan seemed to view the sentence they imposed as peculiar to the specific circumstances of that case. They wrote that the outcome of the sentence appeal should not be seen as having precedent value.23 I therefore consider it not of overly-much assistance and more of an outlier.
[24] Another case referred to by the appellant is R v Wereta.24 The offending took place in prison, and involved the defendant hitting the victim with a shank, causing moderately serious injuries. The aggravating features were premeditation, use of a (dangerous) weapon, and attacking the head. Woolford J treated the fact the attack occurred in the context of a fight, where the victim was also armed (albeit with a broom), as a mitigating feature. He came to a starting point of 13 months. In his analysis, Woolford J also noted several other relevant cases, and I gratefully borrow his descriptions:25
Edmondson v Police26—The defendant pulled the victim's hair and elbowed her in the right eye. He took a knife from the kitchen and warned the victim that if she called the Police he would put a knife to her throat faster than they could get there. When she attempted to call the Police, he took the telephone from her and bent her fingers back. He took a large carving fork and used it to stab her in the lip. On appeal, Peters J reduced the starting point on the assault with a weapon charge to 14 months imprisonment.
Mohib v Police27—The appellant slapped and punched the victim multiple times in the head. He later left the room and returned with a hammer. He struck the victim with the head of the hammer, hitting her multiple times in the arms and legs, leaving her with bruises to her arms, thighs, face and head. On appeal, the High Court upheld a starting point of 15 months imprisonment for the lead charge of assault with a weapon.
…
23 At [78].
24 R v Wereta [2017] NZHC 1762.
25 At [18].
26 Edmondson v Police [2015] NZHC 3184.
27 Mohib v Police [2017] NZHC 123.
Whatuira v Police28—The appellant punched his elderly father in the face, struck him on the elbow with a hammer, and threw a mountain bike at him, hitting him on the arm. Dobson J allowed the appeal and substituted a term of 17 months imprisonment for two counts of assault with a weapon and one charge of common assault. He did not explicitly state a starting point, but appeared to hold a starting point less than the 12–13 month starting point adopted by the Court of Appeal in Stone v R was appropriate.29
[25] As with Leatherby and Gollan, it is difficult to compare these cases with this one. Most of them involved actual injury, as opposed to mere threats as here. This must be significant. But on the other hand, as Ms Fraser submits, in this case, there was material potential danger to the public and to the victims because of the location of the offending and the dangerous nature of the weapon. Also, this case involved commission of another offence, albeit not a major one. I also agree with the Judge that Ms Reedy’s behaviour was very intimidating.
[26] Given the factors I have identified, I consider this case is at the lower end of band 2 in Nuku. I consider it is also at the lower end of the cases Woolford J referred to in Wereta, including Wereta itself. Having reviewed all of the cases referred to me for a fair comparison, I consider an appropriate starting point is 13 months’ imprisonment.
[27] As I have said, neither the appellant nor the respondent raises a serious issue with Judge Ronayne’s discrete adjustments. The respondent does submit in passing that the discount of two months for remorse and the uplift of only three months for the January offending are both generous. I agree so far as the January offending is concerned, as that could have easily attracted a cumulative sentence. But I consider the discount for remorse was justified, after reading the pre-sentence report and Ms Reedy’s letter. It is sad to read Ms Reedy’s comments about her situation and her regret at having bitten the very hand that feeds her. She says she is going to work with Probation and others to become a better person. I hope she does this time and that she succeeds. A lot of her crime is very petty, but if she continues with crime like the present, she will basically live her life in prison. I do not consider that needs to be the case.
28 Whatuira v Police [2012] NZHC 1995.
29 Stone v R [2011] NZCA 558.
[28] I do not propose to alter any of the adjustments, with the exception of the guilty plea discount, which must be adjusted to account for the lower starting point. So, from a starting point of 13 months, I add two months for the 31 January 2019 charges, another three months for Ms Reedy’s previous convictions, and take off two months for her remorse. This brings me to one year and four months’ imprisonment. I then discount by four months for the guilty plea.
[29] This brings me to a sentence of one year’s imprisonment. This is materially different to the sentence of two years and five months imposed by Judge Ronayne, such that the original sentence was manifestly excessive.
Conclusion
[30] I allow the appeal and on the two charges of assault with a weapon, I substitute a sentence of one year’s imprisonment.
[31]Neither counsel disputes the correctness of the sentences on the other charges.
[32]I thank counsel for their very helpful written and oral submissions.
Hinton J
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