Soper v Police
[2014] NZHC 2536
•15 October 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-409-000085 [2014] NZHC 2536
RICKY JAMES SOPER
v
NEW ZEALAND POLICE
Hearing: 14 October 2014 Appearances:
J Lucas for Appellant
C E Martyn for CrownJudgment:
15 October 2014
JUDGMENT OF DUNNINGHAM J
[1] Mr Soper appeals a sentence of 21 months’ imprisonment imposed by Judge Strettell in the District Court on 5 August 2014 on one charge of common assault, and one charge of male assaults female. Both assaults were committed against Mr Soper’s former partner, and occurred on two different dates shortly after Mr Soper’s release from prison.
[2] The grounds of appeal are that the Judge:
(a) adopted a starting point that was too high;
(b) erred in not following the correct sentencing methodology; and
(c) failed to give sufficient credit for Mr Soper’s guilty pleas.
SOPER v NEW ZEALAND POLICE [2014] NZHC 2536 [15 October 2014]
[3] These errors cumulatively result in a sentence that Mr Soper says was manifestly excessive.
The offending
[4] The offending occurred shortly after Mr Soper was released from prison where he was serving a sentence for assaulting the same victim as in this bout of offending.
[5] The victim was recovering from injuries she received as a result of a car accident she had shortly before the offending. She had a hip injury which meant she needed crutches to assist her walking and had a metal plate installed to remedy a broken eye socket.
[6] The first assault occurred on 29 April 2014 at the victim’s house when both she and Mr Soper were drinking heavily. He became angry at the victim, straddled her and pushed down on her chest with his hands causing her pain. He then clenched his fist and said he would punch the victim. Two days later, on 1 May, the victim arrived home to find Mr Soper intoxicated. She threatened to call the police and Mr Soper became angry. He straddled the victim who was on her bed and punched her in the face three times. She received swelling and bruising to her left and right cheeks, her forehead and her hand with which she deflected a fourth punch.
[7] Mr Soper has an extensive and persistent history of offending. He has
54 convictions for dishonesty offending, 14 for breaches of bail or release conditions and 14 driving related convictions. He also has four male assaults female convictions, four common assault convictions, one conviction for assault with intent to injure, one for aggravated assault and one for assaulting a police officer.
[8] He has severe alcohol and drug dependence problems. The psychological assessment and pre-sentence report provided to the Court in advance of sentencing outlined a concerning pattern of increasing frequency and severity of violence related offences, a “borderline” range of cognitive functioning and a very high risk of reoffending due to substance abuse. It further records that access to a supported
residential rehabilitation facility upon release “would appear to be the only way to increase the likelihood of a successful release into the community”.
The District Court decision
[9] The Judge outlined the facts of the offending, including that it had occurred a short time after his release from prison on similar offending and noted that Mr Soper’s inability to deal with his anger and violence is a clear characteristic of his substance abuse. He considered that Mr Soper was a serious risk to any members of the public, especially females who are in a relationship with him and anyone who came into contact with him generally once he has been drinking. He acknowledged the concern outlined in the psychological assessment that Mr Soper’s offending has increased in both frequency and severity. He considered the offending was serious and the situation was aggravated by his knowledge of the victim’s injuries.
[10] Judge Strettell adopted a starting point of four months’ imprisonment on the common assault charge and 15 months’ imprisonment on the male assaults female charge. He then proceeded on the basis of a collective 19 month starting point from which he gave a four month discount, representing a discount of approximately
21 per cent, to reflect “relatively early” guilty pleas, but imposed a six month uplift
to reflect his serious history of previous convictions. He concluded, at [13]:
A term of 21 months fairly reflects, in respect of the more serious of the two, but in totality, the offending.
Appeals against sentence
[11] Section 250 of the Criminal Procedure Act 2011 governs appeals against sentence from the District Court to the High Court. Section 250(2) provides:
(2) The first appeal court must allow the appeal if satisfied that-
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[12] Not every error suffices the purposes of s 250(2)(a), however. The types of error contemplated by that section are:
(a) errors of law;
(b)failing to take account of, or not giving sufficient weight to relevant factors;
(c) taking account of irrelevant factors; and
(d)errors of principle, such as adopting a starting point that is disproportionately high.
Did the District Court make an error in sentence?
[13] Counsel for Mr Soper advances three grounds of appeal:
(a) Judge Strettell adopted a starting point that was too high;
(b)Judge Strettell erred in not following the correct sentencing methodology; and
(c) Judge Strettell failed to give sufficient credit for Mr Soper’s guilty
pleas.
[14] As a result of these errors Mr Soper ’s sentence is said to be manifestly excessive.
[15] While it is accepted by the Crown that the Judge erred by applying the discount for the early guilty plea before applying the uplift, that in itself will not warrant interfering with sentence unless the end sentence it leads to is inappropriate. As was said in Dellaway v R:1
[T]he key issue on appeal is whether the final total sentence is available and within range. Rarely will the route to it be of appellate significance.
Was the starting point adopted too high?
[16] The Court of Appeal in R v Reihana, stated that there was no tariff sentence for male assaults female offending because the range of circumstances in which those offences occur is too variable. 2
[17] In Reihana, the defendant faced one charge of male assaults female resulting from him forcing his way into his former partner’s home, punching her in the eye causing her to fall and leaving her with bruising and a split eyebrow which required stitches. On appeal, a 10 month sentence (which reflected the starting point), was set aside as “clearly excessive” and five months’ imprisonment substituted.
[18] However, in other cases, higher starting points have been adopted. In R v Werahiko, where the defendant pleaded guilty to conversion of a car and was found guilty following trial of one charge of male assaults female, a sentence of 12 months’ imprisonment on the male assaults female charge was held to be “entirely appropriate”. 3 In that case it was clear that the defendant was not welcome at the address. He struck the victim with considerable force in the presence of a baby and another child, and in breach of the protection order.
[19] A further case which counsel agreed has parallels to the present case, was Wallace v R.4 In that case the defendant pleaded guilty to two charges of male assaults female, two of common assault and one of intentional damage. He had previous convictions for violence, one resulting in imprisonment and in the first male assaults female his partner suffered severe bruising to her legs, back, stomach, arms and shoulders. The sentencing judge adopted a 15 month starting point which was uplifted by six months for the appellant’s previous convictions and further uplifted three months for the common assault charge leading to a starting sentence of 24
months’ imprisonment. From that deductions were made for a guilty plea and for time spent on electronic bail led to an end sentence of 16 months’ imprisonment. On appeal, the 15 month starting point was upheld and a three month uplift applied to
reflect the totality of the offending and a further three months for previous
2 R v Reihana CA143/03, 3 July 2003.
3 R v Werahiko [2008] NZCA 24.
4 Wallace v R [2012] NZCA 546.
convictions. From that, discounts were applied leaving an end sentence of 14
months’ imprisonment.
[20] Finally, in Waitai v R, the defendant faced one charge of male assaults female.5 She was his ex-partner and five months pregnant with their child at the time of the assault. Following an argument with the victim, Mr Waitai refused to leave, pushed the victim several times, hit her in the back with an object (thought to be a rock) and placed her in a choke hold three times. The choke holds caused the victim to lose her breath. Following the choke holds he placed her in a headlock and
further pushed her.
[21] The sentencing judge adopted a starting point of 18 months for the male assaults female offending. It was uplifted by six months to reflect that the offending occurred on bail and reduced by 15 per cent to reflect his guilty pleas. On appeal, the High Court concluded the 18 month starting point was too high and reduced the starting point to 12 months, taking into account the uplift for the offending occurring on bail and a discount for guilty pleas, an end sentence of 12 months was imposed.
[22] Taking into account these cases, I am of the opinion that a sentence of
12 months’ imprisonment represents an appropriate starting point for sentencing on the male assaults female charge, as the offending is similar to the offending in Waitai v R. The Crown emphasised that the victim was vulnerable at the time, because she was still recovering from injuries received from the car crash, but there was a similar vulnerability in the Waitai case where the victim was five months’ pregnant.
[23] However, to reflect the totality of the offending, including the other assault charge, I consider a 15 month starting point is appropriate, which I note is at the top end of the starting point for the totality of the appellant’s offending proposed in the appellant’s submissions.
[24] The appellant accepts that the six month uplift for previous offending is within range and is not contested on appeal. Accordingly, this uplifts the starting point to a sentence of 21 months’ imprisonment.
Discount for guilty plea
[25] The District Court Judge gave a discount of approximately 21 per cent from the starting point for the guilty pleas. The appellant submits that the correct discount is the maximum that can be given under the Supreme Court’s judgment in Hessell v R, being 25 per cent. 6
[26] The appellant notes that the guilty pleas came at a case review hearing after the police agreed to withdraw a theft charge and amended the 30 April offending to a Summary Offences Act assault. If a 25 per cent deduction was applied to the guilty plea, a sentence of 15 and three quarter months’ imprisonment would be arrived at.
[27] However, the Crown submits that the application of a discount for a guilty plea is not just calculated on when the plea is entered, but instead must be calculated having regard to all relevant matters including:
(a) the degree to which the guilty plea facilitates administration of the criminal justice system, i.e. the benefits to both the system and the participants in it;
(b)the strength of the prosecution case and the related extent to which a plea involves an acceptance of responsibility;
(c) whether or not the plea was entered following concessions by the accused and prosecutors on the charges faced and facts submitted; and
(d)whether or not the plea was entered following the exercise by the accused of his right to challenge the admissibility of evidence.
[28] In the present circumstances, a discount of approximately 21 per cent was close to the maximum allowable and was entered following concessions by the prosecutor on the charges which the accused faced and in light of an apparently strong prosecution case. Accordingly, I can see no error in the Judge applying a
discount which was close to, but not at the maximum which could be applied for a guilty plea.
[29] Applying then the Judge’s discount of 21 per cent to the 21 months’ sentence reached so far, results in a sentence of a little over 16 and a half months. This represents an end sentence approximately 22 per cent lower than the sentence imposed in the District Court.
[30] Accordingly, I am satisfied that the sentence imposed by Judge Strettell was manifestly excessive. The appeal is allowed and the sentence of 16 and a half months’ imprisonment is substituted.
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co., Christchurch