Te Whata v Police HC Auckland CRI-2011-404-135

[2011] NZHC 924

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-135

HERBERT JOHN TE WHATA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 August 2011

Counsel:         N Bourke and R Slade for the Appellant

L J Clancy for the Respondent

Judgment:      1 August 2011

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:

Mr N Bourke, Public Defence Service, Auckland

Mr L J Clancy, Meredith Connell, Office of the Crown Solicitor, Auckland

TE WHATA V NEW ZEALAND POLICE HC AK CRI-2011-404-135 1 August 2011

[1]      On 19 April 2011 the appellant, Mr Te Whata, was sentenced in the District Court to cumulative sentences totalling 3 years 7 months imprisonment for nine offences committed between August 2009 and February 2011.   Mr Te Whata now appeals against sentence on the grounds that the total is manifestly excessive and some individual sentences are manifestly excessive

[2]      Mr Te Whata pleaded guilty to all of the charges on 15 March 2011.   The charges and the maximum penalties for the offences are, in summary:

Offence	Date	Section/Act	Maximum Penalty
Breach of community work	15 July 2009	s 71(1)(a) Sentencing Act 2002	3 months imprisonment
Male assaults female	8 August 2009	s 194(b) Crimes Act 1961	2 years imprisonment
Unlawful interference with a motor vehicle	17 August 2009	s 226(2) Crimes Act 1961	2 years imprisonment
Assault with intent to injure	5 September 2009	s 193 Crimes Act 1961	3 years imprisonment
Threatens to kill	5 September 2009	s 306(a) Crimes Act 1961	7 years imprisonment
Fails to answer bail	18 September 2009	s 37(a) Bail Act 2000	1 year imprisonment
Fails to answer bail	23 November 2009	s 37(a) Bail Act 2000	1 year imprisonment
Male assaults female	18 February 2011	s 194(b) Crimes Act 1961	2 years imprisonment
Threatens to kill	18 February 2011	s 306(a) Crimes Act 1961	7 years imprisonment

The offending in summary

[3]      On 10 July 2009 Mr Te Whata was sentenced to 100 hours community work for offences of possession of utensils.  This sentence is not subject to the appeal, but all but two of the offences giving rise to this appeal occurred while Mr Te Whata was

subject to this community work sentence. Also in respect of this earlier sentence, Mr Te Whata failed to report to a probation officer as required within 72 hours of the sentence. This gave rise to the breach of community work charge.

[4]      I will set out the facts of the further offending subject to the appeal in a chronological order, including a note of some of Mr Te Whata’s Court appearances over the period of the offending.

[5]      The first male assaults female offence on 8 August 2009 occurred when Mr Te Whata became involved in a heated argument with a woman. After being grabbed on the wrist by Mr Te Whata the victim managed to free herself and walked to a phone booth where she intended to call Police.  Mr Te Whata followed her and, after grabbing her by the shoulders from behind, grabbed her by the head and smashed her head into the side of the phone box a number of times.  He then kicked her in the legs and punched her in the head.  The summary of facts, which was admitted (and admitted in respect of the other charges), did not indicate any injury to the victim. Mr Te Whata appeared on this charge on 10 August 2009 and was remanded on bail. All of the remaining offences occurred while on bail on this charge and there were then successive remands on bail for the further offending.

[6]      The interference with the car on 17 August 2009 occurred at about 2:00 am in the morning.  Mr Te Whata attempted to disconnect a car alarm.  Later that morning he returned to the car with an accomplice, disconnected the alarm, removed the registration plates and walked away.  He was apprehended shortly after.

[7]      On 1 September Mr Te Whata made a second appearance in the District Court in relation to the assault on 8 August 2009.  He was again remanded on bail.

[8]      The  5  September  2009  offending  –  assault  with  intent  to  injure  and threatening to kill – occurred when Mr Te Whata was in a park in Auckland.  He was drunk.  He got into an argument with a male associate about a car stolen from Mr Te Whata’s partner.  The other man went to leave.  He was struck by Mr Te Whata with a stiff arm, bringing the victim to the ground.  Standing over the victim Mr Te Whata said “If I go down I’m going to kill you”.  He pulled the victim’s jersey over his head

and began kicking him about the head.   He kicked him about 10 times before the victim escaped and contacted Police.   The victim suffered a broken nose and was taken to hospital.  Mr Te Whata appeared on this charge on 7 September 2009.  He was remanded on bail without plea.

[9]      The  detail  of  the  next  Court  appearance  is  a  little  unclear  from  the informations, but it is not in dispute that there was a failure to answer bail on 18

September.    This gave rise to the first failure to answer bail charge.  It seems that there was a further appearance on  28 September with a remand on  the current matters to 23 November 2009.  Mr Te Whata failed to appear on 23 November 2009, giving rise to the second charge of failing to answer bail.

[10]     The offences on 18 February 2011 of male assaults female (the second such offence) and threatening to kill (also the second offence of this nature) were against Mr Te Whata’s partner.   The offences occurred at a hostel.   Mr Te Whata and his partner had been in what was described as “an on/off relationship” for the past 3 years.  An argument over a phone card escalated to the point where Mr Te Whata pushed the victim into a corner and began punching her in the head.  He then picked up a knife with a blade approximately 3 inches long and held it up in a threatening manner.   The hostel manager opened the door to see what was going on and the victim fled. The victim received bruising and lumps to the left hand side of the head. She did not require any medical treatment.

Personal circumstances

[11]     Mr Te Whata is aged 47.  The pre-sentence report indicates that he suffered abuse in his childhood and he ran away from home at the age of 13.

[12]     He  has  a  list  of  approximately 80  previous  offences.    The  first  offence occurred when he was aged 14.  This was a burglary.  It is clear that, at least in more recent years, alcohol and drug abuse have contributed significantly to the offending and certainly appear to have been a significant factor in the offending giving rise to this appeal.  Mr Te Whata is assessed at high risk of reoffending.

[13]     The Judge understandably placed emphasis on the offending history.  For this reason it is relevant to note the broad categories of offending.  By my count (there may be minor errors) the previous offences have been as follows: 8 minor drug offences – 6 of which relate to cannabis possession and 2 relate to methamphetamine possession or possession of utensils; 19 driving offences, including excess blood alcohol; 19 offences which may broadly be described as property offences (theft, interfering with or taking cars, burglary – of which there appear to be 6 previous offences); 4 offences for property damage; and 4 breaches of a protection order.  I list those first because, although they cannot be ignored, they are generally less relevant, certainly in relation to the more serious offences subject to this appeal.

[14]     The previous  offending  of more direct  relevance may be  summarised  as follows: there have been 17 offences for breach of Court orders, failure to comply with sentences and similar types of offending, including resisting arrest (with the latter perhaps more suited to a different category); 1 offence of male assaults female in 2008 and 1 in 2000; 1 previous offence of common assault which was in 1978 and dealt  with  in  the Youth  Court;  and  1  offence  in  1998  of  threatening  to  kill  or threatening to cause grievous bodily harm.

District Court sentence

[15]     The Judge outlined the offences and then discussed Mr Te Whata’s personal circumstances.   As I have noted there was understandably some emphasis on the previous offending.  The Judge also referred to the significant influence of alcohol and drugs in this.

[16]     The Judge then said that five things made the case “especially serious”. Firstly, he referred to the previous offences.  Secondly, he referred to convictions for breaching Court orders or failing to comply with sentence conditions.   He noted, thirdly, that in the past the Court’s had tried “every conceivable sentence in the hope that” Mr Te Whata “might see the light”, but he had not.  The fourth factor was the significance of the consumption of alcohol and drugs.   The Judge described this problem as “enormous”.  He said “it is so big that you’re like a fast train that no-one can stop because you just mow everyone down around you”.  The fifth matter was

expressed as follows: “The violence has been so serious … it is a miracle that no-one has been killed”.   The Judge referred to the level of this type of offending in the community with reference to family violence and death.

[17]     The Judge then turned to particular sentences.  He took the assault with intent to injure on 5 September 2009 as the lead offence.  He dealt with this as follows:

[15]      You are at such high risk of offending again that in my view the way in which you need to be dealt with is to take the lead offence of assault with intent to injure.  I have started on the premise that you would be sentenced to two years, six months on that charge.  I take into account a very late guilty plea and have therefore reduced that to two years, three months.

[18]     A cumulative sentence was imposed for the second male assaults female offence on 18 February 2011.  The Judge took a starting point of 18 months, reduced it by 4 months to take account of Mr Te Whata’s guilty plea (which on this offence was entered  at a very early stage) and  imposed an end sentence of 14 months imprisonment cumulative on the 2 years 3 months for the assault with intent to injure.

[19]     The Judge impose a further cumulative sentence of 2 months imprisonment for the second offence of failing to answer bail – the failure to answer bail on 23

November 2009.

[20]     All  other  sentences  were  imposed  concurrently.    The  total  sentence  was therefore 3 years and 7 months (although the Judge in his sentencing notes inadvertently recorded the total as 3 years 11 months).  These concurrent sentences

were as follows:

Breach of community work: 2 months imprisonment.

Failure to answer bail on 18 September 2009: 2 months imprisonment.   Assaulting a female on 8 August 2009: 10 months imprisonment.

Threatening to kill on 5 September 2009: 18 months imprisonment.

Threatening to kill on 18 February 2011: 12 months imprisonment.

Interference with a vehicle: 2 months imprisonment.

Submissions on appeal

[21]     For Mr Te Whata, Mr Bourke’s principal submission on appeal was that the overall sentence is manifestly excessive having regard to the totality principles applying under s 85 of the Sentencing Act.  He accepted that there was no error in imposing a cumulative sentence for the male assaults female charge, but submitted that there should not have been a further cumulative sentence for the failure to answer bail.

[22]     Mr Bourke submitted that the apparent starting point adopted for the lead offence was manifestly excessive and that, overall, an end sentence for that offence should have been 12 months.   He further submitted that an end sentence for the second male assaults female offence should have been 12 months if the offending is to be assessed individually.   Mr Bourke submitted that the total of the sentences should have been 2 years imprisonment.

[23]     On more specific matters he submitted, firstly, that the discount for the guilty plea for the second male assaults female charge was inadequate because the plea was entered at the first available opportunity (as Mr Clancy, for the respondent, acknowledged).  Second, the Judge failed to give sufficient weight to the indications of remorse in the pre-sentence report.   And third, there should not have been a further cumulative sentence for the failure to answer bail.

[24]     Mr Clancy, for the respondent, in his written submissions recorded that the respondent accepted that the sentence of 2 years 3 months imprisonment for the lead offence was excessive and that an appropriate end sentence of between 12 to 18 months imprisonment is appropriate.   He nevertheless submitted in his oral submissions that the starting point for this offending could properly have been 21 months imprisonment and that an appropriate discount for the guilty plea would have been around 3 months imprisonment.

[25]     Mr Clancy further submitted that, save for an adjustment in respect of the lead offence, the other sentences, both as cumulative sentences and in respect of the totality, were well within range.  Mr Clancy, in respect of a discount for the guilty plea on the second male assaults female charge, noted that this might in effect be offset against the very late plea for the earlier male assaults female charge.  He also questioned the genuineness of the remorse Mr Te Whata is recorded as expressing to the probation officer.

Discussion

[26]     The Court of Appeal has said that, when considering the totality principle, the Court “will not insist that the total sentence be arrived at in a particular way”: R v Barker.[1]   It is nevertheless of assistance to seek to assess sentences for the individual offences for which cumulative sentences are imposed adopting the usual approach to sentencing as best as it can be applied.   Having done so it is then, of course, necessary to assess the overall sentence as required under s 85.

[1] R v Barker CA57/01, 30 July 2011.

[27]     It was not in issue before me that it was appropriate for the Judge to take the offence of assault with intent to injure as the lead offence.  It is not clear from the sentencing notes whether the Judge took a true starting point of 2 years 6 months.  In making these and further observations I recognise that the Judge is likely to have been dealing with this sentence in a busy list Court.  The expression he used – “I have started” – suggests that this was a starting point.  This is reinforced by the next paragraph which dealt with the 18 February male assaults female offence for which the further cumulative sentence was imposed.   It may be, notwithstanding what I have  just  said,  that  the  assessment  of  2  years  6  months  included  an  uplift  for previous offending and the fact that the offending being dealt with occurred while Mr Te Whata was on bail.  And this included the fact that he was on bail for the first offence of male assaults female.

[28]     Because this is not clear I consider it is appropriate to reassess the sentence for the lead offence before going on to consider the other sentencing.   I have had

regard to cases referred to me by counsel and one or two other cases.  These are:

McRoy,[2] Finiki,[3] Teka,[4] Taingahue,[5] Mogan[6] and Harris.[7]

[2] R v McRoy & Anor CA261/06 and CA265/06, 12 October 2006.

[3] Finiki v Police HC Christchurch, CRI-2011-409-38, 3 June 2011, Venning J.

[4] Teka v Police HC Auckland, CRI-2009-404-253, 7 September 2009, Venning J.

[5] Taingahue v Police HC Wellington, CRI-2009-485-75, 17 August 2009, Miller J.

[6] R v Mogan CA160/97, 30 July 1997.

[7] R v Harris [2008] NZCA 528; CA497/08, 3 December 2008.

[29]     This offence involved a reasonably serious assault, but it is certainly not the most serious of this type of offending.   I believe it is fair to summarise the submissions  of  both  counsel  along  the  lines  that  it  is,  in  essence,  mid-range offending of this type of offending.   I agree.   I do consider, with respect, that the Judge was wrong, having regard to the facts, to preface the direct sentencing remarks with reference to the possibility of death and to the level of serious violence in the community including violence leading to death.   These matters, and the Judge’s general review of Mr Te Whata’s history of offending, do appear to have produced a starting point which, in my judgment, is manifestly excessive.

[30]     Having regard, in particular, to the other cases that I referred to, to the extent that they can assist, in my judgment an appropriate starting point would have been around 15 months imprisonment.  There was undoubtedly need for an uplift to take account of some of the previous offending and the fact that this offence occurred while on bail.  I do not consider that there were any significant mitigating factors, save for the guilty plea.  I have noted Mr Bourke’s submission in respect of remorse but I do not consider, as best as these matters can be assessed, that any great discount can be given for the fact that Mr Te Whata spoke to the probation officer along those lines.

[31]     Assessing the matter overall, with an uplift and as much discount as might properly be given, I consider that an end sentence for this lead offence should be 16 months imprisonment.

[32]     In relation to the offence of male assaults female on 18 February 2011, it is accepted by both counsel, and I agree, that a cumulative sentence is appropriate. The

starting point adopted by the Judge – and expressly stated to be such – of 18 months

imprisonment would, in my judgment, be manifestly excessive if this offence was being assessed in isolation.  The end sentence was 14 months imprisonment.  Again, assessing this in isolation, and factoring in a maximum discount for an early guilty plea, this end sentence would be too high.  However, when considered in relation to all of the offending, and in particular the fact that this was a second offence of male assaults female, approximately 18 months after the first such offence, and therefore factoring in a material uplift for that earlier offending if it is not to be a cumulative sentence, I do not consider that an end sentence of 14 months will produce an overall sentence which is excessive.

[33]     In respect of the third cumulative sentence of 2 months for the second offence of failing to answer bail, I recognise the force of Mr Bourke’s submission if this offence was viewed, in large measure, in isolation.  It is the sort of offending which may often result in conviction and discharge, or a modest penalty.   Indeed, this is what has occurred with Mr Te Whata in the past.  However, this offence does need to be put into the overall context of all of the offending the Judge was dealing with directly – that is to say, for sentencing – and the nature of Mr Te Whata’s previous offending.  It was partly because of this particular sentence that I set out some of the detail of the earlier offending.  Mr Te Whata’s failure to comply with Court orders and conditions of sentencing, and conditions imposed on release following earlier sentences, is considerable.  Although the term of imprisonment for this cumulative sentence  might  be  regarded  as  severe,  I  do  not  consider  that  it  is  manifestly excessive.

[34]     Subject to final appraisal under s 85, this reassessment of the sentencing would result in an overall sentence of 2 years and 8 months compared with the Judge’s final sentence of 3 years and 7 months.  When reviewing the more serious offences of Mr Te Whata over this 18 month period, and putting it into context with his previous offending, and making as much allowance as can properly be made for his personal circumstances, I do not consider that an overall end sentence of 2 years

8 months is excessive in terms of s 85 of the Sentencing Act.

[35]     For  these  reasons  the  appeal  is  in  consequence  allowed  to  the  extent indicated.   The sentence for assault with intent to injure on 5 September 2009 is quashed and in its place there will be a sentence of 16 months imprisonment.

[36]     One of the concurrent sentences imposed by the Judge was the sentence of 18 months imprisonment for threatening to kill on 5 September 2009. At the conclusion of my oral judgment as recorded above (save for minor editing for the purposes of clarity) I overlooked the fact that that sentence is longer than the adjusted sentence for the lead offence of 16 months.  I did ask counsel whether any matters arose from my conclusion that the lead offence sentence should be 16 months.   Both counsel shared my oversight as neither counsel said that any further matters arose.  However, the error is mine.  I propose to deal with this in the following way:

(a)       The sentence of 18 months imprisonment for threatening to kill on 5

September   2009   is   quashed   and   a   sentence   of   12   months imprisonment is substituted for that sentence.   The sentence of 12 months imprisonment for threatening to kill on 5 September 2009 is to be served concurrently with the sentence of 16 months imprisonment for assault with intent to injure.

(b)Leave is reserved to either party to apply to recall the judgment in this regard provided the application is made by 9 August 2011.

(c)       This judgment will therefore lie in Court in respect of this matter until

10 August 2011.

[37]     In all other respects the appeal is dismissed and in consequence the other sentences are confirmed.

Peter Woodhouse J