Van Silfhout v Police HC Tauranga CRI-2011-470-22

[2011] NZHC 1028

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2011-470-22

JOSHUA VAN SILFHOUT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 September 2011 (Heard at ROTORUA)

Counsel:         C Horsley for Appellant

N Tahana for Respondent

Judgment:      2 September 2011

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

VAN SILFHOUT V NEW ZEALAND POLICE HC TAU CRI-2011-470-22 2 September 2011

[1]      Mr Van Silfhout pleaded guilty in the District Court to a charge of assault with intent to injure.   The maximum penalty for that charge was three years imprisonment.     On 20  June 2011 Judge Everett sentenced Mr Van Silfhout to

12 months imprisonment.1   He now appeals to this Court against sentence.

Facts

[2]      The incident that gave rise to the charge occurred whilst Mr Van Silfhout was serving a sentencing of one year eight months imprisonment at Kaitoke Prison in Wanganui.   On 10 September 2011, Mr Van Silfhout and an  associate  attacked another inmate in an exercise yard at the prison. There was no one else present at the time.    The  two  men  punched  and  kneed  the  victim  in  the  head  on  numerous occasions.  They continued to do this until a prison officer observed what was going on and came to the rescue of the victim.

[3]      The victim suffered bruising to his head and body, and was taken to hospital for treatment.  He suffered injuries to his ribs and pain under his ribcage.  He also suffered from grazes and tenderness to the neck.  The attack left him suffering from headaches and nausea.

The sentence

[4]      The Judge noted the aggravating factors of the offending, including the fact that this was a premeditated attack by two prisoners on another person.  It involved numerous blows, including blows to the head.  A further aggravating factor was that the attack occurred within a prison environment.

[5]      Taking those factors into account, the Judge selected a starting point of 18 months imprisonment.  He applied a three month uplift to reflect Mr Van Silfhout’s lengthy list of previous convictions.  He then reduced the sentence by a total of nine months to reflect the guilty pleas, and the fact that Mr Van Silfhout suffers from mental health difficulties.   This left him with the end sentence of 12 months imprisonment.

[6]      The Judge said, however, that the sentence was to be concurrent with his present prison sentence.   He said that he took that step to try and assist Mr Van Silfhout in circumstances where he could have made the sentence cumulative on his existing sentence.

The appeal

[7]      On appeal, counsel for Mr Van Silfhout initially argued that the sentence that the Judge imposed on Mr Van Silfhout was of such disparity to that imposed on his co-offender that this Court should intervene to rectify the situation.  He relied on the principle that the administration of justice is brought into disrepute if significantly disparate sentences are imposed on offenders for essentially the same offending.2

[8]      This submission was based on the fact that Mr Van Silfhout’s co-offender received an end sentence of six months imprisonment after pleading guilty to the same charge and being sentenced on the same summary of facts.  This indicates that the Judge who sentenced him took a starting point of eight or nine months imprisonment, rather than 18 months imprisonment as was done in the present case.

[9]      Events have now been overtaken, however, by a series of issues that were not immediately apparent  until  counsel  for  Mr Van  Silfhout  investigated  the  matter recently.

[10]     It is apparent from the Judge’s sentencing remarks that he was unaware of the sentence that had been imposed on Mr Van Silfhout’s co-offender.   He was also apparently under the impression that Mr Van Silfhout remained a sentenced prisoner, and that he was due to be released in or about September 2011.  That fact is evident from the passage in the sentencing remarks where he indicated that he proposed to impose a concurrent rather than a cumulative sentence.

[11]     It  appears,  however,  that  the  Judge  was  under  a  mistaken  impression regarding Mr Van Silfhout’s status as at the date upon sentencing.  It now transpires that Mr Van Silfhout was eligible for release from his existing sentences on 14 May

2011.  Between 14 May and 20 June 2011, when the Judge sentenced him, his status was that of a remand prisoner.  As a result, he will be required to serve a further six months of imprisonment as from 14 May 2011.   This means that he will not be eligible for release until 14 November 2011.

[12]     Reading the Judge’s sentencing remarks as a whole, I have no doubt that he intended Mr Van Silfhout to serve a further three months in prison after the release date on his existing sentences.  The sentence that the Judge imposed, however, did not meet that objective, because of the fact that Mr Van Silfhout was a remand prisoner as at the date he was sentenced.  As a consequence, the sentence that the Judge imposed on Mr Van Silfhout will require him to serve a significantly longer period than the Judge intended.

[13]     Mr   Van   Silfhout   has   now   served   the   equivalent   of   eight   months imprisonment.  He has remained in prison for nearly four months after his release date in respect of the earlier sentences.  I therefore propose to allow the appeal.  I quash the sentence of 12 months imprisonment.  In its place I impose a sentence of eight months imprisonment.  This means that Mr Van Silfhout will be due for release

within the next few days.

Lang J

Solicitors:

Crown Solicitor, Tauranga

Counsel:

C Horsley, Tauranga