Whichman v Police

[2019] NZHC 3245

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-497

[2019] NZHC 3245

UNDER

Criminal Procedure Act 2011

IN THE MATTER

of an appeal against sentence

BETWEEN

GEORGE WHICHMAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	10 December 2019
Appearances:	Appellant in person with Ms H Rogers as McKenzie Friend A Wills for the Respondent
Judgment:	10 December 2019

JUDGMENT OF GAULT J

This judgment was delivered by me on 10 December 2019 at 4:45 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Parties / Solicitors:

The appellant, C/o Mt Eden Prison, Auckland

Mr H Steele and Ms A Wills, Meredith Connell, Office of the Crown Solicitor, Auckland

WHICHMAN v POLICE [2019] NZHC 3245 [10 December 2019]

[1]    Mr Whichman appeals against his sentence for common assault.1 He pleaded guilty and was sentenced by Judge J Jelas in the Waitakere District Court to six months’ imprisonment.2

Summary of facts

[2]    On the night of 13 October 2019, Mr Whichman was an at address in Glen Eden. It was an address operated by the Man Up programme, where he was working as a property manager. The complainant was staying at the address and sleeping on the couch. Around 10:00 pm, Mr Whichman began yelling at her, and they argued. He yelled something to the effect of “keep talking like that and I’ll drag you out of this house myself”. He grabbed her and threw her to the ground, then pulled her through the lounge onto the veranda, causing her to hit her head and right ankle on the door as he dragged her through it. While there, he pulled her up by her hoody before pushing her into the veranda railing. Another person intervened, and Mr Whichman then left the address. The complainant sustained bruising to her right calf and grazes to her back, as well as a headache.

[3]    Mr Whichman says the argument began because the complainant had broken the house rules by smoking methamphetamine at the address and stealing clothes from other tenants. He says, supported by an affidavit from another tenant, that she became aggressive and approached him in an aggressive manner when he confronted her about this, which is what led to the assault. He says he did not intend to hurt her, and that he was in part trying to defend himself. She was apparently on bail for alleged offending involving grievous bodily harm and is currently in custody on remand. They have now, he says, reconciled their differences.

[4]    Mr Whichman pleaded guilty on 21 October 2019, it seems at or near to the first opportunity.

1      Crimes Act 1961, s 196. Maximum penalty one year’s imprisonment.

2      New Zealand Police v Whichman [2019] NZDC 23134.

District Court decision

[5]Judge Jelas characterised Mr Whichman’s offending as follows:3

My view of the summary of facts is that it was an unprovoked assault upon a tenant who was asleep at the time. Your language towards the victim was threatening. Your manhandling of her caused her to fall to the ground. You then dragged her through the lounge onto a veranda causing her to hit her head and right ankle on the front door as you pulled her through those areas. Once outside you then pushed her onto the veranda railing, causing her right calf to hit the railing. You then left the premises. She sustained bruising to her right calf and grazes to her back. She also suffered from a headache.

[6]    The Judge noted that Mr Whichman was last sentenced in the Manukau District Court for various assault offences on 31 July 2019. Counsel for Mr Whichman before Judge Jelas submitted that an appropriate starting point was six months’ imprisonment, with an uplift of up to three months for his previous history, a discount of 25 per cent for personal mitigating features, and a further 25 per cent discount for the guilty plea, leading to an end sentence of five months, with leave to apply for home detention.

[7]    The Judge accepted the starting point was appropriate, applied an uplift of two months on account of Mr Whichman’s previous convictions, but then discounted by two months to account for the guilty plea.

[8]    The Judge then turned to consider whether leave should be granted to apply for home detention (a suitable address not yet having been found). She noted that the pre- sentence report assessed Mr Whichman as at high risk of re-offending and of posing a high risk of harm to others. She also noted Mr Whichman’s extensive letter to her, which expressed a desire to move on from his life of repeat offending and contribute to making the community a better place. But the Judge considered his behaviour as a property manager fell short of this goal and showed his propensity for violence. She said: “You did engage in initial stage with a psychologist in accordance with your release conditions and those conditions will again apply on your release from this sentence.” (Mr Whichman says he was not subject to any such conditions, and has not seen a psychologist since 2012).

3      New Zealand Police v Whichman [2019] NZDC 23134 at [1].

[9]    The Judge determined not to grant leave to apply for home detention, considering the short period between this sentence and his last sentence for violence. She imposed a sentence of six months’ imprisonment and imposed release conditions for six months after conclusion of the sentence.

Approach on appeal

[10]   Under the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.4

[11]   In deciding whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.5 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.6 The focus is on the end result rather than the process by which the sentence was reached.7

Submissions

[12]   Mr Whichman’s initial ground of appeal seemed to be that the Judge failed to give him any credit for personal mitigating factors, such as the fact he is employed and has been given a good character reference by his employer (who is well aware of his offending and history) so now has better prospects of rehabilitation, has remorse and that he has reconciled with the victim, and his family are upset at his being in prison again. He also submits that Judge Jelas violated s 26(2) of the New Zealand Bill of Rights Act 1990 – the right of a person not to be punished for the same offence twice – by applying the uplift of two months to account for his previous convictions.

[13]   Mr Whichman also submitted the Judge was wrong not to impose home detention as the least restrictive sentence. However, at the hearing Mr Whichman confirmed that he does not seek leave to apply for home detention because by the time Corrections had considered the suitability of an address he would likely reach his statutory release date.

4      Criminal Procedure Act 2011, s 250(2).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

6      Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R, at [30]-[35].

7      Tutakangahau v R, at [36].

[14]   While Mr Whichman did not initially seem to be challenging the starting point, he has now filed additional submissions following his receipt of Judge Jelas’s sentencing notes.

[15]   First, he says the Judge mischaracterised his offending by suggesting the attack was unprovoked, and that he assaulted the complainant while she was sleeping, when it was, he says, provoked by the complainant’s behaviour, and the assault did not occur while she was asleep, but following a verbal argument and the complainant advancing threateningly on him.

[16]   Secondly, he says the Judge was incorrect to suggest that he was subject to post release conditions following his sentence earlier this year as he cannot recall such conditions being imposed, and to suggest he had seen a psychologist. He says this may have been erroneously suggested in a previous pre-sentence report.

[17]   Mr Whichman also objects to being subject to post release conditions in the future. He says these only hinder his efforts to reintegrate into the community.

[18]   Mr Whichman also submits he did not get a fair hearing because the Judge only received his written submissions at the last minute.

[19]The respondent submits the Judge did not err and the sentence is within range.

Discussion

[20]   I first address the starting point. The respondent submits it was appropriate, considering the aggravating factors were actual violence, vulnerability because the complainant was smaller and asleep at the time Mr Whichman initiated the argument, and breach of trust arising from Mr Whichman’s position as the property manager of the address, giving him a degree of power over her.

[21]   In terms of Mr Whichman’s submission that he was provoked, the respondent submits this is not reflected in the summary of facts to which Mr Whichman pleaded guilty, and that in any event even if true the complainant’s actions did not justify the

assault.    The respondent submits the starting point was in range for this type of offending.

[22]   Ms Wills, counsel for the respondent, refers first to Dooley v Police, which involved an unprovoked punch to the head, which followed the appellant racially abusing the victim.8 This Court came to a starting point of 10 months’ imprisonment on appeal.   The second  case referred to is  Jefferies v Police, also cited to me by   Mr Whichman, where the appellant arranged for another person to assault the appellant’s partner, which involved her being hit repeatedly in the head, while he stood and watched.9 This attracted a starting point of eight months. These cases are clearly more serious than the present.

[23]   There is no guideline judgment for common assault, which although it can encompass a vast range of offending, has a maximum penalty of one year’s imprisonment. More serious assaults usually attract the charge of assault with intent to injure.10

[24]   I accept the Judge may have slightly mischaracterised Mr Whichman’s offending, as she said this was an unprovoked attack on a sleeping person, whereas that is not in the summary of facts. Mr Whichman may have been provoked to some extent, although that is, of course, no excuse and does not give rise to reduced culpability here. There is nothing in the summary of facts to suggest there was serious provocation which was an operative cause of the violence inflicted, and which remained an operative cause throughout the commission of the assault.11

[25]   Considering these factors and the offending as a whole, I consider the starting point of six months was in the available range although I may have taken a starting point of five months.

[26]I now turn to the adjustments for factors personal to Mr Whichman.

8      Dooley v Police HC Christchurch CRI-2008-409-1, 21 February 2008 at [2].

9      Jefferies v Police [2019] NZHC 2702 at [2].

10     Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.

11     R v Taueki [2005] 3 NZLR 372 (CA) at [32].

[27]   First, in  terms  of  the  uplift  for  previous  convictions,  I  do  not  accept  Mr Whichman’s submission that the uplift breaches his right not to be punished twice for the same offences. That is not its purpose. Such uplifts are commonplace and well accepted as being appropriate in some cases. Their purpose must be kept in mind. The relevant principles were summarised by Dunningham J in Reedy v Police:12

The principles in relation to uplifting the previous offending can therefore be stated as follows:

(a)there will be no uplift for the bare existence of previous convictions – to do so would be to punish offending more than once;

(b)The permissible lines of reasoning, justifying an uplift, fall into three broad categories:

(i)previous convictions bearing upon character and culpability;

(ii)indication of predilection to offend in a specific way (an indicator of reoffending);

(iii)the need to protect society by the imposition of a deterrent sentence.

This necessarily requires the uplift to be firmly tied to specific aspects of the offender's criminal history.

(c)the uplift must remain proportionate to the starting point fixed by the sentencing Judge.

(d)there is no fixed figure beyond which an uplift will be held to be disproportionate. This is a matter to be determined, at first instance, by the sentencing judge having regard to all relevant factors (i.e. number, seriousness and nature of previous convictions, previous sentences imposed, time elapsed since the last conviction etc).

[28]   Judge Jelas did not specify her reasoning for the uplift, although she did note Mr Whichman had recently been sentenced on other assault related convictions in July 2019, and that there was a short period of time between that and this offending. I can infer from this she based the uplift on the high risk of re-offending and perhaps the need to protect the community through imposing a deterrent sentence. I note also that Mr Whichman’s counsel accepted a higher uplift of three months may be warranted.

[29]   Whatever  the  reason,  I  accept  an   uplift   was   available   here   given   Mr Whichman’s extensive criminal history. Mr Whichman is 29 years old. He has

12     Reedy v Police [2015] NZHC 1069 at [19].

accumulated over 80 sentences of imprisonment since he was 17 years old. But I would not have imposed an uplift. While it is true that Mr Whichman was recently sentenced for other violent offending, that offending occurred in 2016. Without going into unnecessary detail, Mr Whichman was convicted on those charges in 2017, but his conviction was overturned on appeal, and sent back for a retrial. The background is set out in the Court of Appeal decision.13 Mr Whichman then spent a considerable period of time on remand, before pleading guilty and being sentenced in July this year. He was then immediately released having served his time on remand.

[30]   So, before this offending, Mr Whichman had not been convicted of any violent offending occurring since 2016, although he was in prison during some of this period. The current offending is much less  serious than  his  previous  violent offending.  Mr Whichman says he has turned a corner in his life, and the fact he has not accumulated more violence related convictions (or any conviction except for shoplifting) lends some credence to this. His character references and employment are also cause for hope that he has support to lead a better life.

[31]   He was released from his last term of imprisonment in July this year and has been working for the Man Up programme.   It seems things were going better for   Mr Whichman (although he added the conviction for shoplifting, for which he was sentenced to come up if called) before he was charged with the present offending.

[32]   In these circumstances, I do not consider an uplift should have been imposed based on the risk of re-offending or for the protection of the community. I consider that purpose of sentencing14 should have been subordinated to the purpose of assisting in Mr Whichman’s rehabilitation and reintegration.15 I consider that two months longer in prison,16 on a short-term sentence of imprisonment where there is limited if any opportunity to attend rehabilitative courses, does nothing to benefit the community or Mr Whichman. He has spent a considerable period of his life in prison, so any

13     Whichman v R [2018] NZCA 519.

14     Sentencing Act 2002, s 7(g).

15     Sentencing Act 2002, s 7(h).

16     Or rather one month, given offenders are released after they have served half of their short term sentence of imprisonment.

benefit of being incarcerated, whether that be to deter him from future offending or to offer him a chance for rehabilitation, has surely been felt by now.

[33]   Turning then to any discounts that may be appropriate, the Judge did not explicitly address whether any discounts were appropriate besides for the guilty plea. I consider some discount could have been given for prospects of rehabilitation, given Mr Whichman’s employment and offers of support from the Man Up programme and his family. The prospect of change is not insignificant given his criminal history and time spent in prison. I also consider Mr Whichman’s successes in various other Court appearances may be relevant here. He is a frequent litigant, both in criminal and civil matters. His successes include getting a verdict overturned in the Court of Appeal (albeit succeeding on only one of a “cornucopia” of grounds) and succeeding in a judicial review claim against the Department of Corrections. He has even appeared on a leave application before the Supreme Court. The fact he was able to convey his case adequately, and presumably behave acceptably, indicate he is perhaps learning to work within the bounds of the law, and shows hope for his future. I would have given a discount to reflect these factors, that more than offset any uplift.

[34]   With a starting point in the range of five to six months and a net reduction of approximately 10 per cent or less than one month for Mr Whichman’s personal circumstances, and the guilty plea discount of 25 per cent, I would have come to a sentence of three and a half months’ imprisonment.

[35]   Having reached that conclusion, I now turn to whether the sentence of six months’ imprisonment was manifestly excessive. The focus as I have said is on the end result, not the process by which a sentence is reached. When considering reducing a sentence by a few months, Courts must be wary of interfering with the legitimate exercise of judicial discretion in sentencing by “tinkering” with the sentence on appeal.17

[36]   I conclude that, while individually each step of Judge Jelas’ sentence may have been justifiable, taken together they resulted  in an end sentence that was  too high.   I find, therefore, that the sentence was manifestly excessive. I consider an adjustment

17     Maihi v R [2013] NZCA 69 at [21]; and Mack v R [2013] NZCA 183 at [16].

in this case is justified. Reducing a six month sentence by two or three months is a meaningful reduction, not tinkering.

[37]   I do not consider there was any fair hearing issue, notwithstanding the Judge may have received submissions late. The Judge referred to Mr Whichman’s submissions in various respects and I did not take Mr Whichman to be suggesting there was material information that was not before the Judge.

[38]   I do not consider it desirable to remove all the post-detention conditions.    Mr Whichman has demonstrated that he may still resort to violence when in a stressful situation, and that he cannot be completely trusted in the community. In these circumstances, I consider conditions are justified. Mr Whichman is interested in attending the Man Alive programme. Mr Whichman is also interested in taking a property management course. Mr Whichman should take the conditions as an opportunity to demonstrate he is ready to live a more exemplary life, and I encourage him to take advantage of any rehabilitative opportunities, such as meetings with a psychologist, that they may offer.

[39]The one condition that causes particular concern is the condition:

To obtain the written approval of a Probation Officer before starting or changing your position and/or place of employment (including any voluntary and unpaid work). To notify a Probation Officer if you leave your position of employment.

[40]   I have sympathy with Mr Whichman’s concern that this condition could undermine his rehabilitation. He is concerned that Probation will prevent him from resuming work as a property manager for Ms Wang upon his release. Ms Wills submitted that it is of concern that the offending occurred in Mr Whichman’s role as a property manager and that his employer did not terminate his employment as a result of the offending. Mr Whichman said that his employer has advised him that if there are any more issues, his employment will be terminated.

[41]   It is unclear whether the condition would require a probation officer’s approval to resume work for Ms Wang, the person responsible for that address. Mr Whichman says he is still employed. If so, he would not be “starting”. However, the position

would be different if Mr Whichman’s employment has technically ceased while he has been in custody. In any event, while I appreciate the respondent’s concern about the circumstances of the offending, I consider that the condition should be varied so as to maintain a degree of oversight in relation to Mr Whichman’s employment as a property manager or otherwise without needing approval to resume the role for Ms Wang. Approval should still be required in the event of a change in employment. I consider this appropriately balances the respondent’s concern and Mr Whichman’s prospects of rehabilitation. I vary the condition as follows:

To obtain the written approval of a Probation Officer before changing your position and/or place of employment (including voluntary and unpaid work) from your role as a property manager employed by Ms Wang. To notify a Probation Officer if you leave your position of employment.

[42]   As mentioned, I also record that Mr Whichman does not seek leave to apply for home detention.

Conclusion

[43]I allow the appeal.

[44]   On the charge of common assault, I substitute a sentence of three-and-a-half months’ imprisonment.

[45]The employment condition is varied in accordance with paragraph [41].

Gault J