Tawhai v Police HC Wellington CRI-2011-485-47
[2011] NZHC 883
•27 July 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2011-485-47
JAMES FALCON TAWHAI
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 19 July 2011
Counsel: AMP Ross for Appellant
A A McCubbin-Howell for the Respondent
Judgment: 27 July 2011 at 9:45 AM
In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 9.45am on the 27th day of July 2011.
RESERVED JUDGMENT OF MACKENZIE J
[1] The appellant was sentenced by Judge Kelly in the District Court at Porirua on 12 April 2011 following pleas of guilty on one count of injuring with intent to injure, one count of escaping lawful custody and one count of failing to answer District Court bail. He was sentenced to four months’ home detention on the injuring with intent to injure count, two months’ home detention on the count of escaping lawful custody and 200 hours’ community work on the charge of failing to answer District Court bail. All sentences were cumulative so that the final end
sentence was six months’ home detention (on special conditions) and 200 hours’
TAWHAI V NEW ZEALAND POLICE HC WN CRI-2011-485-47 27 July 2011
community work. He appeals upon the grounds that the sentence imposed was manifestly excessive and wrong in principle.
[2] The Judge set out the facts of the injuring with intent to injure count as follows:[1]
[1] Police v Tawhai DC Porirua CRI-2010-091-004648, 20 May 2011 at [6]–[10].
At approximately 11.15 pm on Friday 11 February 2011 you were a passenger in a motor vehicle that was driving around Porirua East. You were intoxicated. You and the other occupants in the vehicle saw a bus driver who was involved in an altercation with a group of youths.
The bus driver had pulled his bus over to speak to the youths as they had been throwing stones at the bus. When the bus driver got out of his bus and approached the youths a confrontation had developed. As the situation was escalating the bus driver decided to back away from the incident and walked back towards his bus.
You saw that your younger sister was amongst the group of youths and got out of the vehicle. You aggressively approached the driver as he walked back to the bus. As you were standing in the middle of the road the driver tried to usher you towards the side of the road for the sake of safety. You briefly exchanged aggressive words with the driver and then walked away. The driver got back on his bus and sat in the driver’s seat and then became distracted by another male who attracted his attention.
You walked away from the bus and uplifted a weapon believed to be a hammer. You then walked back to the front door of the bus and saw that the driver’s attention was diverted so you entered the bus and swung the hammer in one powerful blow striking the driver on the left side of his head. You then left the bus and the area.
The driver was stunned by the blow which caused his head to immediately bleed. An ambulance was called and the victim was transported to hospital where he received stitches to his head and was discharged.
[3] The facts relating to the other two counts were described by the Judge in these terms:[2]
[2] At [15]–[16].
While you were on bail for that offending, on 3 March 2011 the police were conducting enquiries on an unrelated matter at an address in Porirua. The police came across you at that address. The police had been actively searching for you because you were breaching your 24 hours curfew bail condition. You were heavily intoxicated, which was also a breach of your current bail conditions.
Police called out to you and when you woke up they advised you you were under arrest for breaching your bail conditions. You were given your rights
and you acknowledged you understood that. While the constable had his hand on your shoulder you asked to say goodbye to your girlfriend. The police allowed you to do this. You then asked if you could locate some shoes to wear. The police agreed to allow you to retrieve your shoes from a room in the house. While you were out of sight you fled from the address. Police then spent a considerable time searching the address and the nearby area, but failed to locate you.
[4] The sentencing Judge noted that the appellant is 17 years of age and had been in custody for some six weeks. He had told Probation that he became a fully patched member of the Mongrel Mob in March 2011. He has no previous criminal convictions but was assessed at being at moderate risk of reoffending. The Judge noted the view of the Probation officer that the appellant was not suitable for an electronically monitored sentence given his inability to comply with bail conditions and offending while on bail. The recommendation was imprisonment. In Court, the Probation officer supported a sentence of home detention, despite the reservations expressed.
[5] The Judge assessed the starting point as 18 months for the charge of injuring with intent to injure and nine months for the charge of escaping custody, a total starting point of 27 months. Her Honour allowed a three month uplift for the aggravating features that the offences were committed while on bail and in breach of bail conditions specifically targeted to reduce the risk of offending. As mitigating factors she took into account the appellant’s age, the remorse which he had shown, his offer to attend a restorative justice conference which was not able to be organised, and also his previous good character in that he had no previous convictions. She allowed a discount of one third to a sentence of 20 months’ imprisonment. She then allowed a discount of 25 per cent for the guilty plea, to an end point of 15 months’ imprisonment.
[6] The Judge then considered home detention. While she had serious reservations about the appellant’s ability to complete such a sentence, she noted that an address was available and that there was family support. She imposed that sentence. In calculating the length, she took into account the period in custody of six weeks to reduce the sentence of imprisonment to 13 and a half months, which equated to six months’ home detention. She said she was going to impose 200 hours community work as well.
[7] Mr Ross for the appellant submits that certain circumstances and mitigating factors were not taken into consideration at the time of sentencing. The appellant’s
13 year old younger sister was among the group of youths involved in the altercation with the bus driver. The appellant claims that he saw the driver punch his sister in the face and that it was as a consequence of that that he told the driver to stop and reacted in the way he did. Counsel submits that when the issue was raised at sentencing the Judge’s response was that that was not in the Summary of Facts and, after further submissions on the point, the Judge stated that it was not relevant. Council submits that this was an uncontested powerful mitigating factor that the sentencing Judge failed to take into consideration and that she therefore erred.
[8] As to the count of escaping from custody, counsel submits that the incident was reflective of an immature young man who has had limited contact with the Police and who made a rash spur of the moment poor decision, rather than anything more sinister. Counsel notes that there are a number of cases where attempts to escape from police custody, either from court or a police van, have resulted in sentences of six months’ imprisonment, but submits that running from police while being spoken to can typically result in a sentence of community work. Mr Ross submits that a starting sentence of nine months’ imprisonment was manifestly excessive and wrong in principle.
[9] On the count of failing to answer Court bail, counsel advises that the appellant had travelled with his elder sister and extended whanau to Levin to attend a tangi and an unveiling. He acknowledges that the appellant should have sought leave of the court to vary his bail conditions and change his remand. Counsel submits that due consideration should have been given to his age, immaturity and his lack of contact with court process in the past. He notes that there is no suggestion that the appellant had offended during the relevant time and that the Judge who dealt with the bail application following his arrest after that breach granted bail and relaxed the appellant’s bail conditions. Counsel submits that this was the first conviction the appellant has received for an offence of this type. He submits that the sentence of 200 hours’ community work was manifestly excessive and wrong in principle on that charge, particularly for a first offence.
[10] Counsel for the Crown submits that there was no error on the part of the Judge in not specifically referring to the suggestion that the appellant had seen the victim punch his sister, that neither the overall starting point nor the end sentence were manifestly excessive, and that the imposition of 200 hours’ community work was also not manifestly excessive, having regard to the totality of the offending.
[11] I deal first with the proposed mitigating factor on the injuring with intent to injure count. In the circumstances described by counsel as I have set them out, the proper course, as counsel for the Crown submits, would have been to deal with the matter under s 24 of the Sentencing Act 2002. The exchange between the Judge and counsel, to which Mr Ross refers, might be viewed as an indication by the Court under s 24(2)(a) that it would be likely to attach no weight to the fact if it were found to exist. If that is the correct way to view it, then there would have been no point in taking the s 24 process any further. If the Judge’s comments are not to be taken as an indication under paragraph (a), then paragraph (b) was engaged. It was incumbent on counsel to make it clear that he wished to rely on the fact, and to be given an opportunity to adduce evidence. That was not done. I do not consider that any error in principle in the Judge’s approach has been demonstrated.
[12] The end sentence of four months’ home detention on that count was not manifestly excessive. I consider that, even accepting the appellant’s claim that the driver had punched his sister, a starting point of 18 months’ imprisonment was well within the available range. Mr Ross submits that this was not a sustained ongoing attack, but limited to a single blow causing no lasting injury. That is the way the Judge described it. The Judge’s assessment of the offending as falling in band 2 of
Harris could not be faulted.[3] A sentence of up to two years’ imprisonment could be
justified under that banding. The 18 month starting point was well within the available range. A generous discount of one third was given for age, remorse and previous good character and the imposition of a sentence of home detention rather than imprisonment, in recognition of the need to impose the least restrictive
outcome. That has led to a sentence which is by no means manifestly excessive.
[3] R v Harris [2008] NZCA 528.
[13] The end sentence for the count of escaping lawful custody was also not manifestly excessive. The Judge was right to regard the offending as considerably more serious that counsel submits. Counsel’s submission that the sentence was manifestly excessive is made by reference to the starting point. Home detention, not imprisonment, was imposed, so that the starting point has little relevance to the assessment. The appropriate focus is on the end sentence. A sentence of two months’ home detention was clearly not manifestly excessive. A cumulative sentence was justified because this was quite separate offending.
[14] The 200 hours’ community work for the breach of bail was also within the available range, having regard to the totality of the offending. This was a deliberate breach of bail. A significant penalty was fully justified. Mr Ross’s submission, that the Judge who dealt with the matter following arrest allowed further bail, can have little bearing on the appropriate sentence. The considerations to be taken into account by the Judge on that occasion were quite different. The sentence imposed on this count was not manifestly excessive, or wrong in principle.
[15] For these reasons, the appeal is dismissed.
“A D MacKenzie J”
Solicitors: AMP Ross, Barrister, Porirua Chambers, Wellington for Appellant
Luke Cunningham & Clere for Respondent.
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