KANERI v NEW ZEALAND POLICE [2017] NZHC 2065

KANERI v NEW ZEALAND POLICE [2017] NZHC 2065 [28 August 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-000156[2017] NZHC 2065BETWEEN ALLAN KANERIAppellantAND NEW ZEALAND POLICERespondenetHearing: 28 August 2017Appearances: M A Edgar for AppellantM J Mortimer for RespondentJudgment: 28 August 2017ORAL JUDGMENT OF PALMER JCounsel/Solicitors:M A Edgar, Barrister, AucklandMeredith Connell, AucklandFacts[1] Mr Allan Kaneri aged 33, was convicted of:(a) burglary, with a maximum sentence of 10 years' imprisonment;(b) assault, with a maximum penalty of 12 months' imprisonment;(c) possession of methamphetamine, with a maximum penalty of six months' imprisonment or a $1,000 fine; and(d) breaching his release conditions under the Parole Act 2002, with a maximum penalty of one year imprisonment or a $2,000 fine[2] The offences were committed on Tuesday 8 November 2016. Around 11.30 pm Mr Kaneri entered the Spicy House Restaurant on Dominion Road in Auckland through the rear door, which is not open to the public. He had no authority to do so. He climbed a ladder to an upper floor office area, opened a tin and took $160 cash. Climbing down the ladder Mr Kaneri was confronted by a worker at Spicy House. He punched the worker in the face with a closed fist, leaving him dazed, in an attempt to flee. Other staff overheard the commotion and helped detain Mr Kaneri until Police arrived.[3] Upon being searched pursuant to arrest Police found approximately 0.5 of a gram of methamphetamine in Mr Kaneri's pocket. Mr Kaneri has previous convictions for drug-related offences, dishonesty, driving and violence-related charges and multiple charges of failing to answer bail and breaching community based sentences. He had been released from prison just two weeks before this offending.[4] Mr Kaneri was originally charged with aggravated assault rather than common assault, which carries a maximum of three years' imprisonment rather than one year. That charge was reduced as a result of a plea negotiation. Mr Kaneri pleaded guilty two days after being apprehended.Victim[5] As a result of the assault, the victim suffered swelling to his right eyebrow area, an open cut to his eyebrow that was bleeding, and bleeding inside his eye requiring hospitalisation. In his Victim Impact Statement, the victim notes he now fears for his safety and the safety of the others that work at the restaurant, if Mr Kaneri was to return.Corrections' Report[6] The Department of Corrections assesses Mr Kaneri as being at high risk of re-offending, including medium risk of harm to others, given his current and previous violent offending. It recommended a sentence of imprisonment.District Court decision[7] On 5 April 2017 Judge Collins in the District Court sentenced Mr Kaneri to two years, three months imprisonment.1 Judge Collins observed it was likely thatthis offending was driven by Mr Kaneri's need to fund his methamphetamine addiction.[8] For the burglary charge, the Judge took an 18 month starting point. He considered the assault to be serious and made an uplift by 12 months. He considered a much more serious charge could have been available on the facts. He made an additional uplift of three months for the possession of half a gram of methamphetamine and another three months for breach of the release conditions.[9] Judge Collins then considered whether the resulting 36 months'imprisonment reflected the totality of the offending. Given the offending had occurred while Mr Kaneri was subject to release conditions, the Judge considered it was reflective of the totality of the offending. The purposes of deterrence and denunciation justified, in his view, a global starting point of three years. Finally, the Judge gave a full 25 per cent, or nine months, discount for Mr Kaneri's guilty plea. That left a concurrent total of two years, three months' imprisonment.1 New Zealand Police v Kaneri [2017] NZDC 7404.Submissions[10] Mr Edgar is under instructions by Mr Kaneri to file this appeal. He does not challenge the starting point; he does not challenge the uplifts except for one. He submits the 12 month uplift for the assault, representing the statutory maximum penalty, was excessive. While the assault was serious, Mr Edgar submits it cannot have been the most serious assault contemplated by Parliament. Alternatively he says the Judge should have reduced the sentence to better reflect the totality of the offending. He acknowledges the 25 per cent discount was generous.[11] Mr Mortimer, for the Crown, submits the uplift was high but not excessive and the end sentence is not excessive. He submits the facts may well have justified an injuring charge. If the assault charge does not warrant such an uplift, the Crownsubmits the overall starting point of 36 months' imprisonment for all four chargeswas generous and well within range. In this sense, the 12 month uplift is balanced out by either or both of the generous starting point and the fact the offending occurred while Mr Kaneri was subject to release conditions.[12] The Crown refers to Judge Collins' "cross-check" whereby he notes that, hadthe charge been one of burglary only, he would have taken a starting point of two years, six months anyway. It supplies three cases that support that proposition.2Finally, Mr Mortimer notes a higher sentence would have been available, as the Judge did not apply an uplift for Mr Kaneri's previous convictions. He submits a 25 per cent discount could be seen as generous considering Mr Kaneri was caught in the act and apprehended at the scene. The Crown is not seeking an increased sentence and Mr Mortimer observes Mr Kaneri can consider himself fortunate.Law[13] Under s 250 of the Criminal Procedure Act 2011 I am required to allow the appeal if I am satisfied that, for any reason, there is an error in the sentence imposed; and a different sentence should be imposed. Otherwise, I must dismiss the appeal.2 Rapira v Police [2015] NZHC 699, Moses v Police HC Whangarei CRI-2011-488-000006,24 March 2011, Tuffey v Police [2014] NZH 591.The High Court does not intervene when the sentence is within the range that can properly be justified by accepted sentencing principles.[14] Here, the purposes of sentencing identified by s 7 of the Sentencing Act 2002 include, particularly:(a) holding Mr Kaneri accountable for the harm done to the victims and to the community by his offending;(b) promoting in him a sense of responsibility for, and acknowledgement of, that harm;(c) denouncing his conduct and deterring him and others from committing such offences;(d) protecting the community from Mr Kaneri; and also(e) assisting in his rehabilitation and reintegration into the community.[15] Section 8 of the Sentencing Act sets out the principles of sentencing I am required to apply, which I do apply.Decision[16] I have considered all of Mr Kaneri's, and the Crown's, submissions. I agree the Judge was heavy-handed in imposing an uplift for the assault conviction equivalent to the maximum sentence available for assault.[17] In two cases, of Carrick v Police3 and Williams v Police,4 where the full 12 months were given, the offending was appreciably more serious than it was here.5 In my view, an uplift of nine months would have been warranted.3 Carrick v Police [2017] NZHC 1188.4 Williams v Police [2015] NZHC 3285.5 Williams v Police [2015] NZHC 3285.[18] However, because this was a sentence for multiple charges, I must consider whether the total sentence was appropriate.6 Under s 85 of the Act the total period of cumulative sentences of imprisonment must not be wholly out of proportion to the gravity of the overall offending.[19] Viewed as a whole, Mr Kaneri's offending was serious. It involved the invasion of commercial premises, burglary, assault when confronted and possession of Class A drugs. This could have justified a more serious charge, as the District Court Judge said, and it occurred weeks after Mr Kaneri's release from prison. An overall starting point of two and a half years is within the acceptable range of similar offences. Mr Mortimer cited to me several cases involving more extensive property damage and theft of more valuable items, but without violence, with similar starting points. And I have located two other cases in similar situations, with threatened rather than actual violence, with slightly lower starting points.7[20] I also consider the uplift for the methamphetamine possession was modest. There was no uplift for previous relevant convictions, which would have been justified in my view. The discount for the guilty plea was generous. The Supreme Court has made clear in Hessell v R that acceptance of a plea to a lesser charge can be a concession in itself and giving full credit for a guilty plea may mean the sentence does not properly reflect the offending.8 That seems to me to have been the case here.[21] I consider the sentence is within the range that can properly be justified by accepted sentencing principles. So, while the specific amount of the uplift for the assault charge may have been too heavy, I do not consider a different sentence should be imposed. I decline the appeal...................................................................Palmer J6 R v Hassan [1999] 1 NZLR 14; (1998) 16 CRNZ 18 (CA) at 16; 20; R v MacCulloch [2005] 2 NZLR 665; (2004) 21 CRNZ 268 (CA), at [67] and [68].7 Tinomana v R [2017] NZHC 794; Heald v R [20 14] NZCA 143.8 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62]