Soper v Police
[2019] NZHC 149
•14 February 2019
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2018-425-000032
[2019] NZHC 149
BETWEEN LUKE PHILIP SOPER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 February 2019 Appearances:
J Ross for the Appellant
S N McKenzie for the Crown
Judgment:
14 February 2019
JUDGMENT OF NATION J
[1] Mr Soper pleaded guilty to charges under the Summary Offences Act 1981 of obstructing Police and disorderly behaviour likely to cause violence. He was sentenced in the Invercargill District Court on 1 November 2018 to two fines of $800 each. His partner (Ms Batt) pleaded guilty to three charges under the Summary Offences Act arising out of the same incident. On the same day, the same Judge fined her $200 on each charge. Mr Soper appeals his sentence based on the claimed disparity in sentences.
Facts
Mr Soper’s offending
[2] At approximately 10.00 pm on 6 October 2018, Mr Soper was a passenger in a vehicle that was stopped for an evidential breath test. Mr Soper was with Ms Batt
SOPER v POLICE [2019] NZHC 149 [14 February 2019]
and another male, the driver of the vehicle. The driver was detained by police and placed in a Police vehicle.
[3] Mr Soper approached the patrol vehicle and passed a drink to the driver through an open window, telling him to drink it. Police intervened, took the bottle and warned him to stop. Mr Soper snatched the bottle back from the officer’s grip, approached the Police vehicle again and gave the driver the bottle, allowing him to drink another mouthful. The Police officer intervened and removed the bottle a second time.
[4] At this point, Mr Soper became aggressive and started to yell obscenities at the officer. Mr Soper raised both of his arms above his head and yelled gang slogans at the officer. He repeatedly challenged the Police to fight him. Soon after, Mr Soper advanced towards the Police. As he did so, Ms Batt stood in front of him and attempted to hold him back and stop him.
[5] Mr Soper lunged at the officer and attempted to grab him. Mr Soper was pushed by the officer and he fell backwards to the ground where he was restrained and handcuffed. The detained driver used the opportunity to get out of the Police vehicle and walk away.
Ms Batt’s offending
[6] Ms Batt was charged with obstructing police, assaulting police and resisting police.
[7] When Mr Soper was handcuffed, Ms Batt became aggressive and abusive towards the Police. Her obstruction further enabled the detained driver to leave the Police vehicle and walk away. The Police officer was forced to pursue the driver. With the officer distracted, Ms Batt encouraged Mr Soper to flee. She also encouraged him to fight two Police officers who were restraining him.
[8] Mr Soper was eventually put in the back seat of the Police vehicle by the officer. Ms Batt tried to sit beside him; she was removed from the vehicle and placed
under arrest. As she was handcuffed, Ms Batt attempted to kick the male officer in the groin area. The kick hit the officer in the leg but he was not injured.
[9]Ms Batt struggled violently to break free as she was restrained and handcuffed.
District Court sentencing
[10] The District Court Judge sentenced both Mr Soper and Ms Batt on 1 November 2018. Mr Soper’s counsel told me Mr Soper was sentenced first and Ms Batt a short time later but not immediately so. Mr Ross had appeared for Mr Soper and Mr More appeared for Ms Batt.
[11] The sentencing took place during list appearances. The Judge’s remarks on sentencing were brief. For Mr Soper:
[1] Mr Soper, the task of the police is difficult enough without having drunken people interfere with them, and it is quite clear on this occasion that that was the case.
[2] I know that you have been on a curfew for a while and some would say that you have already had your punishment. Quite frankly, everything you did you brought upon yourself.
[3] In the circumstances, on each charge I fine you $800 plus Court costs, to be paid by 31 December 2018.
For Ms Batt:
[1] As I said previously but you may not have heard it, the police are there to do a job and they do not need to have people, drunk or sober, interfering with that.
[2] As it was, it may well have been that you started off with the best of intentions but then things went awry and you ended up obstructing, resisting and assaulting police officers.
[3] In the circumstances, I will fine you $200 on each charge (that is a total of $600) plus Court costs on every charge. That is to be paid by 31 December 2018.
[4] This is your first foray into the adult Court. You are only 18. Make sure it is your last, because quite frankly you are a person who clearly is keen to work and keen to get ahead in life. Just make sure that we do not see you back here again.
Principles on appeal
[12] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 As the Court of Appeal stated in Tutakangahau v R, “an appellate court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.2 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3
The appeal
[13] Before me, Mr Ross confirmed that it was only because of the disparity in sentences that the sentence imposed on Mr Soper could have been in error. But for disparity, the sentence on Mr Soper would not have been challenged. Mr Ross argued there was an error in the sentence imposed in that the marked disparity in sentences would lead a reasonably minded independent observer to believe that something has gone wrong with the administration of justice. He submitted that a reduced fine for a total of $600 should be imposed.
[14] In Mr Ross’s submission, both sets of offending were cases where the offenders behaved poorly. He argued there was nothing to indicate that Mr Soper behaved in a more abhorrent fashion than Ms Batt. Arguably, Ms Batt acted in a more unsavoury fashion considering she incurred three charges, including assault on a Police officer, whereas Mr Soper was sentenced on one fewer charge.
[15] Mr Ross sought to examine the sentence based on the Taueki method of sentencing.4 Under that methodology, first the Judge must set a starting point to take account of the facts of the offending. Then the Judge should apply any discounts or
1 Criminal Procedure Act 2011, ss 250(2) and 250(3).
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
3 Ripia v R [2011] NZCA 101 at [15].
4 R v Taueki [2005] 3 NZLR 372 (CA).
uplifts based on the offender’s personal circumstances. The last step is to apply any discount for a guilty plea.
[16] The Judge had not expressly followed the Taueki method of sentencing. Given the nature of the offending and the fact the sentencing occurred during list appearances, Mr Ross said he was not suggesting this was a ground for interfering with the sentence. He nevertheless addressed the sentences imposed, trying to work back from the fines ultimately fixed for each offender, assuming Mr Soper would have received a credit of 25 per cent for guilty pleas and Ms Batt would have received a total credit of between 30 to 40 per cent: a 25 per cent for her guilty pleas, and for her youth and good character. He suggested that, working backwards, the starting point for Mr Soper’s offending would have been $2,133.33, reduced by 25 per cent to the actual fines imposed of $1,600.
[17] Mr Ross submitted that, if the starting point for Ms Batt’s offending should have been similar, that is $2,133.33, the fines imposed on her of $600 would have been equivalent to a discount of 72 per cent. He submitted that, given the discounts that might have been appropriate, the end sentences must have reflected a starting point for Mr Soper’s offending in excess of $2,000 and for Ms Batt a starting point in excess of $1,000. He referred to the end sentence for Mr Soper as being 2.5 times greater than Ms Batt’s sentence.
Analysis
[18] Analysed in these different ways, Mr Ross argued there was a disparity of the sort that required the situation to be rectified through a reduction in Mr Soper’s sentence.
[19]A principle of sentencing is that the Court:5
[M]ust take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances.
5 Sentencing Act 2002, s 8(e).
[20] In R v Lawson, the Court of Appeal noted that the integrity of the criminal justice system is put in issue if the public perceives a lack of consistency in the way the Court sentences offenders:6
[A] marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The Courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered evenhandedly.
[21] However, it has also been recognised by the Court of Appeal that sentencing is not an exact science and there will often be legitimate reasons for disparate sentences between co-offenders:7
Whilst it is vital for a sentencing Court to strive for parity in sentencing co- offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offender’s culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.
[22] In R v Rameka, the Court of Appeal was cognisant of an increased willingness to allow disparity of sentence as a ground of appeal but cautioned that, simply because one co-offender has received too short a sentence, it is not grounds for necessarily interfering with a longer sentence imposed on another.8 In each case, the Court must consider all the surrounding and infinitely variable circumstances.9
[23] Where the sentence appealed is appropriate for the offending, then the disparity must be unjustified or gross. This is an objective test not based upon what the appellant thinks but whether “a reasonably minded independent observer, aware of all the circumstances of the offence and of the offenders, would think that something had gone wrong with the administration of justice”.10
6 R v Lawson [1982] 2 NZLR 219 (CA) at 223.
7 R v K (2003) 20 CRNZ 62 (CA) at [20].
8 R v Rameka [1973] 2 NZLR 592 (CA) at 593.
9 At 593.
10 R v Lawson, at 223.
[24] On an appeal, the focus is on the end sentence. The focus must also be on the end sentence for the totality of the offending. The seriousness of the offending in this case is to be assessed by reference to what each of the offenders did, rather than the number of charges they each faced.
[25] In the circumstances of this case, I do not consider it helpful to look at what notional starting points for the offending might have been if the Taueki approach had been adopted and particular discounts provided for at the different stages of sentencing on that approach. That is because the focus is on the end sentence and because the Court has to be concerned whether the public might perceive a lack of consistency in the approach the Judge took and how that might affect the integrity of the criminal justice system.
[26] On appeal, the Court has to be concerned with whether there were circumstances about each of the offenders and their particular offending which could rationally explain the differences in the sentences imposed.
[27] Such a rational explanation might well have been clearer if the Judge, in his remarks, had briefly explained why they were not similar offenders and why he treated Mr Soper’s offending as more serious. Nevertheless, there was at least an oblique reference to these matters in his brief sentencing remarks and such a rational explanation is apparent from the information which is now before me.
[28] Mr Soper was 23 years of age. He had 16 convictions for various offences, including four for wilful damage (family violence) and five which reflected a lack of respect for Court orders or legal obligations such as driving while disqualified and breach of community work. He also had dishonesty convictions. His lack of respect for authority was evident in the offending for which he was sentenced, his attempt to interfere with what the Police were doing, his yelling obscenities and gang slogans at the Police and challenging the Police to fight him. It was Mr Soper who instigated the offending in which both he and Ms Batt were involved.
[29] In contrast to Mr Soper, when Mr Soper became aggressive and advanced towards the Police officer, rather than initiating the offending, Ms Batt stood in front
of him and attempted to hold him back. It was only after Mr Soper was arrested that she became aggressive, started swearing and abusing the Police and offended in the way already described. Ms Batt was only 18. I do not have details of her previous convictions but the Judge said that this was the first occasion on which she had appeared on a charge in the adult Court. He must also have been given information that satisfied him she was a person who was “keen to work and keen to get ahead in life”, that is, to live in a law-abiding and prosocial way.
[30] On all the information that was available to the Judge and to me, I have not been persuaded that the difference in the sentences imposed on the two offenders was so marked and so unjustified as to bring the administration of justice into dispute. There were sufficient reasons for the Judge to deal with them differently. I have not been persuaded that, by reason of disparity, the sentence imposed on Mr Soper was manifestly excessive.
[31]Mr Soper’s appeal is dismissed.
Solicitors:
Montrose Chambers, Invercargill Preston Russell Law, Invercargill.
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