White v Police

[2019] NZHC 1818

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI 2019-412-17

[2019] NZHC 1818

BETWEEN

DAMIEN GARY WHITE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	29 July 2019
Counsel:	B P Kilkelly for Appellant R Smith for Respondent
Judgment:	30 July 2019

JUDGMENT OF SIMON FRANCE J

[1]    Mr White appeals a sentence of three years and two months’ imprisonment imposed in relation to a number of charges, the most serious of which was attempting to pervert the course of justice.1

Facts

[2]    Mr White was first charged with male assaults female, the victim being a former partner he had encountered down town. It involved a single punch to the left cheek.

1      New Zealand Police v White [2019] NZDC 6282.

WHITE v NZ POLICE [2019] NZHC 1818 [30 July 2019]

[3]    The next incident was two months later when Mr White attempted to shop lift. He was detected but refused to remain on site. Security staff locked the shop doors which eventually led Mr White to arm himself with a hammer. He raised it in a threatening manner, before smashing the glass of an exit door so as to be able to leave.

[4]    One month later Mr White went to his former partner’s house. He said he was hungry and the complainant reluctantly let him. Mr White began acting irrationally, was asked to leave but responded by getting angry. He grabbed the woman’s head by each side applying force near the temples. He then left, slamming the door so hard as to shatter its glass. He was arrested soon after and found at that time in possession of the methamphetamine pipe. The pipe is undoubtedly a pointer to Mr White’s erratic behaviour.

[5]    Three days later, Mr White was in Court in relation to these matters. Mr White was denied bail, whereupon he leapt over the dock and sprinted from the courtroom. He was apprehended within the courthouse.

[6]    The final charge, that of attempting to pervert the course of justice, then occurred. Mr White was in jail and rang his former partner who was the victim of the two assaults. Giving clear instructions as to what to say, all of which  is  recorded,  Mr White induced the complainant to swear a false affidavit recanting her complaints. In terms of motivation, there was one aspect of her original complaint which was incorrect, and it seems Mr White was frustrated about this. That aspect was corrected in her affidavit, and the charge based on it was ultimately dropped. However, the instructions went well beyond that and plainly induced her to lie. Inducing the false affidavit reflects the control Mr White had over his victim and is an aggravating aspect of the charge.

Sentencing

[7]    The Judge took a starting point of two years and three months’ imprisonment for the charge of attempting to pervert the course of justice. There were then a series of uplifts in relation to the other charges:

(a)six months’ for male assaults female (the single punch incident);

(b)two months’ for the second assault (grabbing the head);

(c)four months’ for the escaping incident;

(d)two months’ for the methamphetamine pipe; and

(e)three months’ for all the offending in relation to the shoplifting incident which had been charged as theft, intimidation and wilful damage.

[8]    This 17 months’ of uplifts left a total starting point of three years and eight months’ imprisonment, but this was adjusted for totality reasons back to three years, three months. However, there were then further uplifts for past offending (three months) and for offending while on bail (three months), leaving the final aggravated starting point at three years and nine months’ imprisonment. Fifteen per cent credit was given for guilty pleas (10 per cent) and a successful restorative justice conference (five per cent) leaving the end result at three years and two months’.

Appeal

[9]Various aspects of the sentence are challenged. I address each in turn.

[10]   Contrary to the appeal notice, it is now accepted based on R v Maney that the starting point for perverting the course of justice cannot be challenged.2 I observe the Crown position is that this concession is inevitable as the starting point is arguably too light given that the vehicle for Mr White’s offending was the woman he had twice assaulted in a domestic context.

[11]   The first challenge raised on the appeal concerns the various uplifts for the other offending, it being contended the escaping charge in particular could have been less. It was in the context a forlorn attempt which did not progress far. I do not agree. There is a need for a firm response to this sort of conduct which creates considerable

2      R v Maney [2018] NZCA 193.

risk to court staff, counsel and the public. That such a risk was not great in the present case keeps the level of sanction down, as it has here, but there is always a need to be firm in denouncing and deterring it. I also observe that as regards the offence uplifts, there was a totality adjustment made, so all the figures have to be seen in that light.

[12]    The appeal focus otherwise primarily concerns the credit for mitigating factors. There are three aspects to it, and some detail is needed.

[13]    First, Mr White pleaded guilty in December to some of the charges – the first assault, the charges arising from the shop incident and the escaping. The plea to the latter had been intimated in October. He was to be sentenced on these in January, but the Judge that day determined that the existence of the related outstanding charges, particularly another assault against the same victim, meant sentencing should be deferred until the outstanding charges were resolved. This was an orthodox approach, but it is submitted it has disadvantaged Mr White in terms of guilty plea credit. Conceptually there is no reason why a delay in sentencing should affect guilty plea credit, but it needs to be considered if that has occurred.

[14]   Mr Kilkelly argues that the pleas in December merited 10% credit. That seems a reasonable assessment. The uplifts imposed for these offences (ignoring the adjustment down for totality reasons) was 15 months. This would mean a credit of one month (or sometimes two).

[15]   There was a global 10 per cent discount for the guilty pleas. It is not easy to unpackage it all, especially when this credit was combined with that for restorative justice. It is clear, however, that a total of seven months was given. My broad assessment is that 1.5 months was given for the earlier offending, 3.5 months for the other offending, and two months for the restorative justice component. The 1.5 months allowance accords with the figure Mr Kilkelly submits should have been given to the earlier offending, so I consider no error has occurred there.

[16]   As for the 3.5 months for the remaining two offences, again more detail is needed. While on the face of it the pleas occurred on the morning of trail, it is submitted that is misleading. The trial was originally scheduled for 1 April. It was only on 23 January that the new date of 28 January was allocated. Mr Kilkelly could not see his client for three days, hence the plea on the morning.

[17]   I am prepared to accept that a plea may have been indicated around that time in January for a trial due to take place in April. Has that occurred there would have been some trial preparation saving. But the pleas were delayed, however one looks at it. Further, as regards attempting to pervert the course of justice, there simply was no defence. The whole offending was recorded. Three and a half months is roughly 10% and, in my view, it was ample recognition for such delayed pleas.

[18]   The final challenge is to the five per cent (two months) credit for the positive restorative justice meeting that occurred with his former partner. The report back indicated Mr White had taken responsibility, indicated genuine remorse, and accepted the victim’s statement that the relationship was at an end. This was submitted to be a positive sign for the future.

[19]   On this aspect the Crown notes the victim was also effectively a co-conspirator on the perverting the course of justice, and so a supportive response to the appellant should be assessed in that light. I do not agree with this point. The victim was not charged, a fact I imagine reflects the coercive nature of the relationship. Insight on the part of an offender in these sort of circumstances is to be welcomed, as is achieving an acceptance the relationship is over. This in turn lessens risks of future conflict and offending . That said, I do not consider two months to be below the available credit.

[20]   Overall, the sentence was in range for what was a sustained spree of offending. Many of the offences were not bad examples of their type and the final result no doubt seems severe to Mr White when one focusses on these offences. However, the addition of an offence of attempting to pervert the course of justice always significantly elevates the sentencing outcome, such is the level of deterrence attaching to it. The sentence on that offence was by no means a severe one and overall the outcome is not in error.

[21]The appeal is dismissed.

Simon France J