Reiha v Police

[2013] NZHC 2446

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2012-454-33 [2013] NZHC 2446

BLAIR PATRICK REIHA Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	18 September 2013 (Heard at Christchurch)
Appearances:	R G Glover for Appellant M A J Elliott for Respondent
Judgment:	18 September 2013

ORAL JUDGMENT OF FOGARTY J

[1]      This  is  an  appeal against conviction and  sentence.   The  conviction was entered and the appellant sentenced on 26 October 2012 at Palmerston North, before Judge L H Atkins QC. The appellant was sentenced on total of eight offences.

[2]      There was offending on 26 March of male assaulting female.   The next incident being male assaulting female on 6 July, in the same incident the appellant threatened to kill. The woman in question was a woman with whom he had been in a relation for approximately one and a half years.  A protection order was in place in July.  In the July offending, the victim had gone to the defendant’s house to end the relationship with him.  The defendant became angry.  There was an argument.  On the summary of facts, he grabbed her by the clothes around her shoulders and pushed her into a chair.  It was at that time he said, “I f... got you now and I’m going to f... kill you”.  The woman got up, but was afraid to go to the door.  She talked to him for

a few minutes, trying to calm him down.  Once he had calmed down, she took her

REIHA v NEW ZEALAND POLICE [2013] NZHC 2446 [18 September 2013]

bag and walked out the door.  There was a to and fro with the defendant following her in the car.   The further offending was breach of protection orders by text messages.   There is an offence for each occasion when a text message was sent. There being five text messages in all.

[3]      I have omitted to cover the first assault offending on 26 March.  This was an occasion when the appellant went to his former partner’s home to return some property. They got into an argument at the house. Again, it was a situation where he took her by her clothes and pushed her down into a chair outside.  The force was such that it broke the chair.  At the time, he said, “I want to punch you in the face”. He grabbed her left arm and twisted it behind her back. Her mother intervened.

[4]      On these facts, the Judge imposed a sentence of 8 months detention, which on the normal principles, whereby a home detention sentence is half the end sentence in prison, that would suggest an indicative end sentence of 1 year and 4 months.

[5]      The appellant has spent on remand a total of three months imprisonment, calculated by the Crown prosecutor from the records, which is equivalent to a 6 months sentence.  It would appear that the Judge, on sentencing, did not allow for the time spent on remand.  Mr Elliott for the Crown allowed for it by adding to the equivalent of 1 years 4 months another 6 months, taking it up to 2 years, and then with another adjustment up to 22 months.

[6]      On the authorities before me, on this set of facts, a sentence of 22 months, or of that order, is simply not justified. Mr Elliott cited three decisions to me.  One was R v Reihana 1in 2003, where the Court of Appeal imposed a term of 5 months imprisonment for a male assaults female charge involving one punch to the face. Neither of the assaults involved such a punch, let alone any blow to the skin.  They were both pushing instances. Admittedly, pushing so that the chair broke shows with

considerable force.

1      R v Reihana CA143/03, 3 July 2003.

[7]      In Penny,2 the second case cited by Mr Elliott, the Court described a sentence of 2 and a half years' imprisonment is not manifestly excessive for threatening to kill, where there had been two previous convictions for the same offence.  Threatening to kill offending does not have a tariff because the contexts vary so enormously.  This was a conviction after a trial before a Judge and jury.  The Court of Appeal decision does  not  tell  one  too  much  about  the  facts.    A significant  part  of  it  was  an examination of his psychiatric condition.   He had two previous convictions for threatening to kill the same victim.  I distinguish this case on the facts as not being sufficiently analogous.

[8]      In the third decision cited by Mr Elliott, MDS v Police,3  the High Court endorsed a starting point in the District Court of 9 months imprisonment, where 18 texts were sent over nine hours in breach of a protection order. This was a barrage of texting by a man with a very long and serious criminal history.  The Judge included an uplift of 3 months.

[9]      Having considered these authorities, and keeping in mind the experience of the Judge, I am of the view that the best interpretation of his judgment is that he did not, and deliberately did not, grant a credit for the time on remand when sentencing the home detention sentence.   That he would have envisaged an end sentence of

1 year and 4 months, which would have included some discount for the pleas of guilty.   I think, if we put aside the time that the appellant spent on remand, that

1 year and 4 months is very much within the range of the authorities and appropriate. However, I also think, relying on a number of decisions of the Court of Appeal, which need not be cited, it is now common practice when sentencing on home detention to take into account the period that has been spent on remand in prison. Three months here, which is equivalent to an end sentence of 6 months, deducting that from 1 year and 4 months suggests an end sentence of 10 months.  Accepting that home detention is appropriate, that suggests an end home detention sentence of

5 months.

2      R v Penny CA24/04, 4 August 2004.

3      MDS v Police [2012] NZHC 1928.

[10]     I am told that the appellant has spent 1 month on home detention before lodging this appeal, which reduces the balance to 4 months home detention.  I have done this calculation as the likely success of the appeal against sentence first, before turning to the appeal against conviction.

[11]     The appeal against conviction is an unusual one.   Essentially, Mr Reiha is arguing that his time on remand was so unpleasant that when he wanted to challenge the summary of facts, and when Judge Atkins said there would have to be a hearing on disputed facts, which would have to be on another day – all perfectly correct and reasonable responses by the sentencing Judge – he, the appellant, could not face anymore time in prison, so pleaded guilty.  I can understand Mr Reiha feeling that way.   In my view, however, on these facts, there would not have been a material difference  in  the  summary of  facts  had  there  been  a  dispute  of  facts  hearing. Mr Reiha said, in respect of one of the assaults, that it had been on the occasion when the woman had advanced on him, and he had put his hands up, pushing her on the shoulders, pushing her back.  That is still assault.  In a situation like that, it is another question of whether or not you can touch the person or sidestep or duck away.  These are low level domestic assaults.  Assuming there was a disputed facts hearing, I reiterate, I think we are still ending up with some minor domestic assaults, perhaps a little more minor than as appearing in the summary of facts.

[12]     Secondly, Mr Reiha has some mental health issues, which are documented. As I indicated in the course of the hearing, it is very difficult to introduce mental health issues as a ground for reducing a prison sentence, or as a ground for not going to prison at all.  This is a deliberate consequence, I am sure, of the way in which the Sentencing Act has been enacted by Parliament. Whether Judges like the law or not, that is the law.  It is virtually impossible to raise a plea of hardship imprisonment, either to reduce the sentence, or to argue that the Judge was in error of law in posing the correct legal option, when one wants to challenge a summary of facts.  Namely, there needs to be a disputed facts hearing.

[13]     I can find no error of law on the part of Judge Atkins in offering Mr Reiha the choice of a hearing on another day for a summary of facts, or going on.

[14]     Mr Reiha said, through his lawyer, that he did not get an opportunity to seek bail.  Again, I cannot adjudicate on that.  Mr Reiha was legally represented at the time.   I can only assume either that Mr Reiha’s counsel decided it was not worth applying for bail, or that the Judge indicated that bail was not an option at that stage. Either way, that in itself is not a ground for setting aside the conviction.  Rather, it seems to me that the just solution in this case is to address the sentence, which I have done.

[15]     For the reasons that I have indicated, I am going to dismiss the appeal on conviction.

[16]     I allow the appeal on sentence, and reduce the end sentence to 5 months home detention, of which he has served 1 month, reducing it to 4 months home detention.   I am going to achieve that sentence by sentencing him on information

4251, being male assaults female, to 2 months home detention, and on information

4521, threatening to kill, that is 2 months home detention, but it is concurrent, as it arose out of the same incident.   I disagree with the Judge, that it is material to separate the two.   On the 26 March information 4380, male assaults female, he is sentenced to 1 month’s home detention, which is the same sentence that the Judge gave.  On the first breach of the protection orders, he is sentenced to 1 month cumulative, the rest are concurrent. The result being 4 months.

[17]     Mr Reiha:

(a)      You are to immediately travel to 10C Somerset Crescent and await the arrival  of  the  probation  officer  or  a  monitoring  company representative.   The start date of your home detention is Thursday

19 September 2013.

(b)At that address, you are not to consume or possess alcohol or non- prescription drugs.

(c)      You are to attend alcohol and drug assessment and complete any counselling,  treatment  as  recommended  to  the  satisfaction  of  the parole officer and provider.

(d)Undertake   and   complete   domestic   violence   prevention   to   the satisfaction of the parole officer and provider.

(e)      Undertake and complete any other counselling treatment programme as directed by the parole officer and provider.

Solicitors:

R G Glover, Christchurch

Marcus Elliott, Christchurch