Tett v The King
[2023] NZHC 2568
•14 September 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2023-443-20
[2023] NZHC 2568
BETWEEN CHRISTOPHER TETT
Appellant
AND
THE KING
Respondent
Hearing: 14 September 2023 Appearances:
Appellant in person
H Bullock for the Respondent
Judgment:
14 September 2023
ORAL JUDGMENT OF PALMER J
Solicitors
C&M Legal, New Plymouth
TETT v R [2023] NZHC 2568 [14 September 2023]
What happened?
[1] On 22 February 2021, Mr Christopher Tett, now aged 39, had an argument with a then 14-year-old girl. He grabbed her arm, pushed her around a kitchen bench, put her arm behind her back and pulled her hair. He held her face down and put his weight on the back of her legs, releasing his grip after two minutes. Mr Tett was charged with, and pleaded guilty to, assault, for which the maximum penalty is one year’s imprisonment.1
[2] On 29 June 2022, Judge G F Hikaka sentenced Mr Tett in the District Court at New Plymouth.2 The Judge sentenced Mr Tett to nine months’ supervision and four months’ community detention, requiring him to attend a non-violence programme and not to have contact with a girl without prior written approval.
[3]Mr Tett breached the conditions of this sentence several times:
(a)On 10 August 2022, he produced a positive result on a drug test for methamphetamine, breaching a special condition of supervision.
(b)On 13 October 2022, he was convicted and discharged for breaching a condition of supervision, for that drug test failure. He was given a final written warning for failing to report to a Probation Officer, having previously received a verbal and written warning.
(c)On 9 November 2022 (though it may have been 9 September 2022) he failed to report to a Probation Officer as directed.
(d)On 16 November 2022, he failed to attend the second part of his assessment for the non-violence programme.
(e)On 30 November 2022, he failed to report to a Probation Officer as directed.
1 Crimes Act 1961, s 196.
2 R v Tett [2023] NZDC 25200.
[4] The maximum penalty for breaching supervision is three months’ imprisonment or a $1,000 fine.3 On 16 December 2022, Mr Tett was charged with, and on 21 December 2022 he pleaded guilty to, three charges of breaching the conditions of his supervision. The Department of Corrections applied under s 54(1)(a) of the Sentencing Act 2002 to have Mr Tett’s sentence of supervision cancelled and substituted with a sentence of imprisonment.
[5] On 22 June 2023, Judge A S Greig re-sentenced Mr Tett for assault and sentenced him for the three breaches of supervision.4 In its pre-sentence report, Corrections advised that Mr Tett’s previous compliance with community-based sentences had been “abysmal” and recommended imprisonment. The Judge noted this, and Corrections’ advice that Mr Tett had been extremely difficult to manage on sentence and had been aggressive at Court as well as at Community Corrections. Mr Tett disputed this, as the Judge also noted.5 The Judge did not identify a starting point or discounts in his re-sentencing. He re-sentenced Mr Tett to three months’ imprisonment for the assault, with release conditions and special post-release conditions for six months. He also sentenced him to an additional one month of imprisonment, cumulatively, for each of the three breaches of supervision.
Submissions
[6] Mr Tett, representing himself, accepts the re-sentencing of three months’ imprisonment for the assault. But he challenges the cumulative nature of the three sentences for breach of supervision. He submits the cumulative sentences are manifestly excessive because each one-month sentence should have been concurrent. He is unable to find any case history where such sentences were imposed cumulatively. He also submits the breaches of supervision were charges resulting from a sentence that was cancelled. He is due for early release next week but a successful appeal would have real meaning for when his sentence ends. Finally, he submits that he was not (and still has not) been able to view the pre-sentence report before sentencing and that the Judge cut short his oral submissions.
3 Sentencing Act 2002, s 70.
4 R v Tett [2023] NZDC 12806.
5 At [5].
[7] Ms Bullock, for the Crown including the Department of Corrections, acknowledges that the Judge’s failure to adopt a starting point could be considered to be an error. But she submits the end sentence was within the range available to the Judge, if not generous having regard to the case law. She submits that, having regard to previous cases, and due to the breaches of supervision being different in kind and not a connected series of events, three sentences of one month to be served cumulatively is not manifestly excessive.6 Having regard to totality, she submits no error can be found in the end sentence which is not manifestly excessive.
Should the appeal be granted?
[8] Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if satisfied that, for any reason, there has been a material error in the sentence imposed and a different sentence should be imposed. Otherwise, I am required to dismiss the appeal. The focus is on whether the end sentence is within the available range.7 The Court will only intervene and substitute its own views on appeal if the sentence is “manifestly excessive”.8
[9] Mr Tett pleaded guilty to breaching supervision three times. The fact the supervision order was subsequently cancelled does not affect the fact he committed those offences. The order was in place when he breached its terms. I understand that Mr Tett considers his oral submissions were cut short during the re-sentencing, but he was afforded an opportunity to speak. If Mr Tett did indeed not receive Corrections’ pre-sentence report, that was an error, though I understand he had not been able to tell the Judge he had not received it.
[10] There were substantive errors in the Judge’s approach to sentencing. Ms Bullock responsibly accepts that the failure of Judge Greig to identify a starting point for the assault or appropriate discounts, including for pleading guilty, may be considered an error. There was effectively little or no reasoning to support the re-sentencing or the sentencing, which were both sentences of imprisonment. And although the Judge took into account the four months’ community detention that Mr
6 Cole v R [2018] NZHC 1405 at [37].
7 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27], [33], and [35].
8 Ripia v R [2011] NZCA 101 at [15].
Tett had completed, it is not clear he explicitly took into account that Mr Tett had served five months of the supervision sentence before Corrections applied to cancel it. So the question for me is whether the end sentence was manifestly excessive.
[11] I agree with Ms Bullock that a starting point of six months’ imprisonment for the assault would have been appropriate, taking into account the aggravating factors.9 As she submits, there should have been a 25 per cent discount, or six weeks, for the guilty plea. And I consider a six-week discount for the time Mr Tett served on the intensive supervision sentence was available to the Judge, taking into account he had served his community detention sentence. Although Mr Tett technically served five months of his supervision sentence, he breached the conditions of the sentence four times. A re-sentencing, which will not be necessary if the conditions of the original sentence are observed, may legitimately involve a modicum of increased firmness.10 The resulting sentence of three months’ imprisonment for the assault is proportionate with the sentence of nine months’ supervision but not generous. Indeed, Mr Tett accepts that sentence.
[12] However, he does challenge the sentences for each breach of supervision running cumulatively rather than concurrently. The relevant sections of the Sentencing Act 2002 are ss 83–85. In particular:
83Cumulative and concurrent sentences of imprisonment
(1) A determinate sentence of imprisonment may be imposed cumulatively on any other determinate sentence of imprisonment that the court directs, whether then imposed or to which the offender is already subject, including any sentence in respect of which a direction of that kind is or has been given.
…
84Guidance on use of cumulative and concurrent sentences of imprisonment
(1)Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
9 Citing Omar v Police [2017] NZHC 288; Dempsey v Police [2015] NZHC 2589; and Sadilier v Police [2018] NZHC 993.
10 Hough v Police [2017] NZHC 93 at [20].
(2)Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
(3)In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—
(a)the time at which they occurred; or
(b)the overall nature of the offending; or
(c)any other relationship between the offences that the court considers relevant.
85Court to consider totality of offending
(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
(3)If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
(4)If only concurrent sentences are to be imposed,—
(a)the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b)each of the lesser offences must receive the penalty appropriate to that offence.
[13] In 2012, in Hughes v R, the Court of Appeal was satisfied, for the purposes of s 84(1), that the offences of driving with excess breath alcohol and driving while disqualified were different in kind, being primarily concerned with road safety and the enforcement of court orders respectively.11 Accordingly, the cumulative sentences there were generally appropriate, whether or not they related to a connected series of
11 Hughes v R [2012] NZCA 388 at [22]; and see Anguna v R [2020] NZCA 127 at [24].
offences. The Court also emphasised that a sentencing court must have regard to the totality of offending under s 85.12
[14]Two High Court cases are also relevant:
(a)In Cole v R, Wylie J considered that concurrent sentences were not appropriate for a breach of a supervision order and a separate breach of a community work order. 13
(b)In Kanuta v R, on appeal, Brewer J did not disturb the concurrency of two sentences of one month’s imprisonment for breach of supervision.14
[15] Here, Mr Tett breached the conditions of the same supervision order three times. Two breaches were of failing to report when required to do so and one was failing to comply with a condition. These were all offences under s 70 of the Sentencing Act. They were not different in kind. All three offences are connected, given their timing, their nature, and their relationship to the same supervision order. They are all offences with the purpose of enforcing court orders, in fact the same court order.
[16] Accordingly, I consider s 84(1) and (2) indicate that the three sentences for breach of supervision must be imposed concurrently, not cumulatively. Furthermore, under s 85, I do not consider the cumulative sentence of six months’ imprisonment was proportionate to the totality of the offending. Sentencing cumulatively for the three breaches of the same order effectively doubled Mr Tett’s sentence of imprisonment. Given its length, the total sentence was manifestly excessive by a third and should be substituted by concurrent sentences for the three breaches of supervision.
12 At [26].
13 Cole v R, above n 6, at [37].
14 Kanuta v R [2016] NZHC 436 at [14] and [50].
Result
[17] I uphold the sentence of three months’ imprisonment for assault. I quash the three sentences of one month’s imprisonment for each breach of supervision to be served cumulatively. I substitute them with three sentences of one month’s imprisonment for each breach of supervision to be served concurrently. So, the total length of Mr Tett’s sentence for these offences is therefore now four months’ rather than six months’ imprisonment.
Palmer J
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