Reid v Police

[2015] NZHC 299

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-000042 [2015] NZHC 299

BETWEEN

WIREMU BRIAN REID

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	26 February 2015
Appearances:	W Hawkins for Appellant M Mitchell for Respondent
Judgment:	26 February 2015

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

WIREMU BRIAN REID v NEW ZEALAND POLICE [2015] NZHC 299 [26 February 2015]

[1]      Mr Reid pleaded guilty in the District Court to two charges of breaching release conditions and one charge of breaching a protection order obtained by his former partner.  The maximum penalty in respect of the charge of breaching release conditions is one year’s imprisonment, whilst the maximum penalty on the other charge is three years imprisonment.

[2]      On 28 November 2014, Judge Adeane sentenced Mr Reid to an effective term of six months imprisonment.1    He appeals against sentence on the basis that it is manifestly  excessive.    Mr  Reid’s  counsel,  Mr  Hawkins,  argues  that  the  Judge adopted a starting point that was too high and did not apply a sufficient discount to reflect his guilty pleas and the fact that he had spent nearly five weeks subject to restrictive terms of EM bail.

Background

[3]      The charges were laid as a result of two separate incidents.  The first of these occurred on 28 July 2014.  The summary of facts records that on that date Mr Reid went to his former partner’s address.   She had earlier obtained a protection order against him.   He had also been released from prison on 30 April 2014 subject to release conditions.  One of these was that he was not to associate with or contact his former partner without the prior written approval of a probation officer.

[4]      Mr Reid remained at his former partner’s address for approximately 24 hours. On the morning of 29 July 2014, he and his partner became involved in an argument. When his partner went to use her cellphone, Mr Reid grabbed it and threw it against a wall.   This caused the phone to break and his partner was therefore unable to contact the police.  She then ran out of the house and Mr Reid chased her.

[5]      Later that day, Mr Reid’s partner went to an appointment with her social worker and used the social worker’s cellphone to call the police.  When the police interviewed Mr Reid about this incident, he said that he had not been to his former

partner’s house within the last three months.

1      New Zealand Police v Reid DC Hastings CRI-2014-041-001521, 28 November 2014.

[6]      Mr Reid appeared in Court for the first time on the charges arising out of that incident on 1 August 2014.  He was then released on bail on conditions, including a condition that he not associate with his former partner.  He then went to her address again on 21 August 2014, and remained there for approximately three days.   A number of incidents occurred during his stay, and these led to further charges being laid.   I am told that these charges were heard at a hearing before a District Court Judge earlier this month, and Mr Reid was acquitted on many of them.   Counsel advise me that he was convicted, however, on a charge of breaching the protection order by going to and staying at his former partner’s address during this period.

The sentence

[7]      The Judge took the view that there was “little room for indulgence” in the sentence to be imposed on Mr Reid.   He considered that the breaches of both the protection order and the release conditions were serious matters, particularly given the fact that Mr Reid has previous convictions for similar offending against his former partner.  The Judge indicated he would give Mr Reid an allowance of one to two months for what he described  as a “belated guilty plea in the place of an unanswerable prosecution allegation”.  This led to the imposition of the sentence of six months imprisonment.

The appeal

[8]      Mr Hawkins submits that the Judge adopted a starting point that was too high.   He says that the Judge’s sentencing notes make it clear that he adopted a starting point of seven to eight months imprisonment on both charges.  He submits that a starting point of no more than six months was warranted, and that the Judge should then have made an allowance of approximately one month to reflect the fact that Mr Reid was on EM bail for a period of approximately five weeks before being sentenced.  The Judge should then have made a further allowance of approximately one month to reflect Mr Reid’s guilty pleas.  Mr Hawkins submits that this process would have produced an end sentence of four months imprisonment, which would have effectively meant that Mr Reid would be released immediately, because he had already served approximately two months imprisonment.

Decision

[9]      It assessing the strength of these submissions, it is necessary to stand back and view the offending as a whole.  It is inherently difficult to adopt a Taueki-based approach.2    The fact that Mr Reid has previous convictions for similar offending means that his past history is inextricably entwined with the present offending.  In other  words,  although  a  sentence  of  imprisonment  would  not  have  been  an appropriate sentence if this had been Mr Reid’s first offence, his past history means that the present offence could only be met with a sentence of imprisonment.

[10]     The most relevant of Mr Reid’s previous convictions are convictions for assaulting his partner and contravening a protection order on 10 December 2013. Those charges resulted in a sentence of six months imprisonment.

[11]     In addition, Mr Reid has further convictions for assaulting a female and injuring with intent to cause grievous bodily harm.   Those charges were laid as a result of incidents that occurred on 4 June and 1 September 2012.  They resulted on Mr Reid receiving a sentence of one year ten months imprisonment.

[12]     I  agree  with  Mr  Hawkins  that  an  appropriate  starting  point  to  take  into account the aggravating factors of the first incident was one of around four months imprisonment.  I do not accept, however, that an increase of just one month would be sufficient to recognise the second incident.  That had significant aggravating factors, because it took place over several days and occurred just one month after the earlier incident. An uplift of at least two months would be required to reflect that offending.

[13]     This produces a starting point of six months imprisonment without taking into account aggravating factors personal to Mr Reid.   In the present case, these obviously include his previous relevant convictions and, importantly, the fact that the second incident occurred just one month after the first and at a time when Mr Reid was on bail in respect of the first charges.  I consider that those aggravating factors would warrant an increase of at least two months.   This would produce an end

starting point of eight months imprisonment before taking into account mitigating

2      R v Taueki [2005] 3 NZLR 372.

factors.  Mr Hawkins submits that a discount of around 15 per cent was appropriate for guilty pleas.  This would reduce the starting point by one month, leaving an end sentence of seven months imprisonment before taking into account any other mitigating factors.

[14]     Even if the Judge had been minded to grant an allowance to reflect the fact that Mr Reid was on EM bail, it is unlikely that this would have justified a reduction of more than one month.   It follows that, in revisiting the sentence using the methodology set out above, an end sentence of six months imprisonment was warranted and well within the available range.

Result

[15]     The appeal against sentence is accordingly dismissed.

Lang J

Solicitors:

Crown Solicitor, Napier