BRAIDEN STEFAN MEADS-PETLEY v NEW ZEALAND POLICE [2021] NZHC 1724

BRAIDEN STEFAN MEADS-PETLEY v NEW ZEALAND POLICE [2021] NZHC 1724 [9 July 2021]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2021-463-000067[2021] NZHC 1724BRAIDEN STEFAN MEADS-PETLEYvNEW ZEALAND POLICEHearing: 8 July 2021Appearances: C Treanor for the AppellantG Banuelos for the RespondentJudgment: 9 July 2021JUDGMENT OF WALKER JThis judgment was delivered by me on 9 July 2021 at 4 pmRegistrar/Deputy RegistrarIntroduction[1] Mr Meads-Petley appeals his sentence of 21 months' imprisonment imposedon 13 May 2021 in the Rotorua District Court in respect of the following charges:(a) behaving in a disorderly manner;1(b) wilful damage;2(c) operating a motor vehicle carelessly;3(d) driving a motor vehicle with evidence of a controlled drug in his blood;4(e) driving whilst disqualified;5(f) assaulting a police officer;6(g) failing to answer bail;7(h) breaching prison release conditions.8[2] Mr Meads-Petley contends that the Judge erred by adopting a starting point forthe lead charge of assaulting a police officer which was too high and uplifts for theremaining charges which were also too high. The notice of appeal was filed oneworking day out of time as there was difficulty arranging contact with Mr Meads-Petley at Waikeria Prison. The respondent does not oppose leave. I grant leave toappeal accordingly.1 Summary Offences Act 1981, s 4(1)(a): carrying a maximum penalty of a $1,000 fine.2 Section 11(1)(a): carrying a maximum penalty of three months' imprisonment or a $2,000 fine.3 Land Transport Act 1998, s 37(1): carrying a maximum penalty of a $3,000 fine and the court mayorder that the person is disqualified from holding or obtaining a driver licence for such period asit thinks fit.4 Section 58(1)(b): carrying a maximum penalty of three months' imprisonment or a $4,500 fine.5 Section 32(1)(a): carrying a maximum penalty of three months' imprisonment or a $4,500 fine.6 Crimes Act 1961, s 192(2): carrying a maximum penalty of three years' imprisonment.7 Bail Act 2000, s 38(a): carrying a maximum penalty of one year imprisonment or a $2,000 fine.8 Sentencing Act 2002, s 96(1): carrying a maximum penalty of one year imprisonment or a $2,000fine.Background[3] The offending is in respect of various incidents.2 September 2020[4] The appellant had been admitted to hospital for the past 13 days for stomachsurgery.[5] On 2 September 2020, he woke to a nurse conducting regular routine vital signchecks. He became agitated. He threw a television remote into the corridor causingit to smash along with patient files and paperwork.[6] The appellant walked off down the corridor in an agitated and aggressivemanner. He threatened staff, challenging them to take him on, referring to fighting.He was subsequently restrained by hospital security.[7] After calming down and being released by security, the appellant kicked a doorcausing the glass panel to smash. He then picked up a metal IV like pole and beganswinging it around, striking walls and doors and damaging the metal pole.[8] The appellant was ushered out of the hospital where he was located by Policein an agitated state. No nurses or hospital staff were hurt as a result of the incident butthey were frightened. This gave rise to the charges of disorderly behaviour and wilfuldamage.3 September 2020[9] On 12 March 2020, the appellant was disqualified from holding a driver'slicence in the Tauranga District Court.[10] On 3 September 2020, the appellant drove a motor vehicle on Koreke Place inTokoroa. The road was dry and well-lit by sunshine. It had a posted speed limit of 50kilometres per hour. The appellant was driving in a manner which caused his vehicleto collide with the opposite curb, causing the vehicle to roll and come to a stop on itsside.[11] The appellant was treated following the traffic crash. A blood sample showedevidence of the controlled drug methamphetamine, cannabis and Diazepam. Thevehicle was extensively damaged in the crash and the appellant sustained injuries tohis wrist which required surgery.[12] This gave rise to the charges of driving whilst disqualified, careless driving anddriving with blood containing evidence of use of a controlled drug.14 November 2020[13] On 13 October 2020, the appellant was released on court bail from Rotorua toappear in the Hamilton District Court on 28 October 2020 at 9.00 am. He failed toappear.[14] On 14 November 2020, Mr Meads-Petley was located by Police on a street inHuntly, acting aggressively and making threats. He was arrested. Due to hisbehaviour, he was transported to the Hamilton custody unit for processing.[15] The complainant is a police constable and was working in full Police uniformat the Waikato District Custody Unit.[16] Mr Meads-Petley was put into a Police issued restraint chair because of hisagitated state. This was to prevent self-injury as the appellant was thrashing about inthe cell area, abusing and threatening Police staff. A couple of Police staff restrainedhim. The complainant was controlling the appellant's head to prevent injury.Threatening to spit at Police, he was placed in a protective hood (also known as a spithood). He thrashed aggressively, turning the spit hood, causing only mesh to coverhis mouth. Seizing the opportunity, he spat a mouthful of bloodied saliva directlyupwards, hitting the complainant in the face.[17] The bloodied spit covered the complainant's face, causing saliva and blood togo into his eyes. The complainant had to undergo blood tests due to the risk ofinfection for HIV, HepB and HepC. He had to wait for three months for his next bloodtest to determine whether he had contracted anything. I apprehend this has to berepeated.[18] This gave rise to the charges of failing to answer District Court bail andassaulting a police officer.9 December 2020[19] On 13 May 2020, the appellant was released on conditions from WaikeriaPrison.[20] On 9 December 2020, the appellant breached a standard condition of hissentence in that he failed, without reasonable excuse, to report to a probation officeras directed.[21] This gave rise to the charge of breaching prison release conditions.District Court decision[22] The Judge stated that it was "crystal clear" that Mr Meads-Petley had beenheavily under the influence of drugs and alcohol in relation to most of the offending.He had been deported from Australia and was separated from his primary family,which was also a factor in the offending. His Honour adopted a starting point of 18months in relation to the spitting of bloodied saliva into the eyes of a police officer.He considered that the "bare minimum". On the basis of totality, he then imposed anuplift in the order of "nine or 10 months" for the balance of the offending. Inrecognition of the appellant's age, circumstances and guilty plea he came to an endsentence of 21 months' imprisonment.[23] The Judge accordingly sentenced Mr Meads-Petley to 21 months'imprisonment on the charge of assault. He acknowledged that there is a reasonablechance that if his alcohol and substance abuse problems were addressed, he may beable to avoid offending in future. To that end, he gave leave to apply for substitutionof the sentence to a full-time residential rehabilitation program.[24] On the charges of driving whilst disqualified and driving with evidence of acontrolled drug in his blood, Mr Meads-Petley was convicted and sentenced toimprisonment for a period of one month in respect of each charge. These sentenceswere to be served concurrently. Again, the Judge granted leave to apply forsubstitution of the sentence on the same terms. The appellant was also disqualifiedfrom holding or obtaining a driver's licence for six months and ordered to payreparation of $668.94.[25] On the charges of intentional damage, failing to answer bail and breach ofrelease conditions, the appellant was convicted and sentenced to two months'imprisonment for each with leave to apply for substitution granted. These sentenceswere to be served concurrently.[26] On the charges of disorderly behaviour and careless driving, the appellant wasconvicted and discharged.[27] This resulted in a net sentence of 21 months' imprisonment.Approach on appeal[28] To succeed on an appeal against sentence an appellant must satisfy the appealcourt that the judge has made an error in the imposition of the sentence and that adifferent sentence should be imposed.9 In all other cases, the court must dismiss theappeal.10[29] In this respect, the court will not simply substitute its own view for that of theoriginal sentencing judge.11 If the sentence is within the range that can properly bejustified by accepted sentencing principles, the court will typically dismiss theappeal.12 It will only intervene if the sentence is manifestly excessive or wrong in9 Criminal Procedure Act 2011, s 250(2).10 Section 250(3).11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].12 At [36].principle.13 The appeal court's focus in this respect will be on the final sentenceimposed rather than the process by which that sentence was reached.14Submissions[30] Ms Treanor, for the appellant, submits that the starting point adopted in respectof the lead charge of assaulting a police officer was too high when compared to otherlike cases. She refers in particular to the decisions in Freer v New Zealand Police andKumar v New Zealand Police.15[31] Ms Treanor acknowledges that spitting on a police officer is a particularlyserious form of assault on a police officer. However, she submits that there aresimilarities between the present case and the decision in Freer as both involve similarrisks in terms of the transference of bodily fluids in the context of a determined effortto assault a police officer. She accepts that the offending in Kumar was less seriousthan the present offending (which I take to mean in terms of effect because the spittingdid not reach the target). She submits that a starting point of 12 months' imprisonmentwas within range.[32] With respect to the uplift of nine or 10 months applied to reflect the remainingcharges, Ms Treanor submits that this too was excessive. She notes that the chargesof driving while disqualified and driving with evidence of a controlled drug in hisblood were the appellant's first charges of that kind. He has no previous convictionsfor driving while impaired or driving with excess blood alcohol. He has one previousconviction for dangerous driving. Ms Treanor submits that if these matters wereconsidered on their own, either a fine or community work would have been imposedwith the mandatory disqualification. Given that a sentence of imprisonment had beenappropriate, she submits that a starting point of one month imprisonment would have13 At [30]–[35]. See also Te Aho v R [2013] NZCA 47 at [30].14 Tutakangahau, above n 11, at [36].15 Freer v New Zealand Police [2019] NZHC 337: appeal against sentence of eight month'simprisonment for charges including assaulting a constable in the form of biting the constable onthe hand. Held that a starting point of six months on that lead charge was too high and a start pointof four months substituted. In Kumar v New Zealand Police [2014] NZHC 1659, Mr Kumarappealed against a sentence of 12 months' imprisonment for resisting Police, two charges ofassaulting a constable with intent to obstruct and breach of home detention conditions. The assaultincluded spitting blood at the constables. Held the starting point of 10 months' imprisonment wasclearly excessive. A sentence of four month's imprisonment was substituted.been appropriate to reflect these charges. Taken together with the other charges, shesubmits that a total uplift of three months' imprisonment would have appropriatelyreflected the gravity of the remaining charges.[33] Ms Banuelos, for the Crown, responsibly accepts that the sentence imposedwas stern and does not seek to support the starting point on the lead charge. Shesubmits that the offending was more serious than both Freer and Kumar. It was alsomore serious than Dockerty v Police.16 In Dockerty, an overall starting point of ninemonths' imprisonment "could not be criticised" for Mr Dockerty assaulting his femalepartner, spitting in the face and head of a police constable during the course of an arrestand biting one of the sergeants on the arm.17 However, Dockerty was a charge broughtunder the Summary Offences Act 1981 and accordingly attracted a maximum sentenceof only six months' imprisonment.[34] Ms Banuelos points out that in the present case the uplifts imposed by theDistrict Court Judge covered more than just the remaining offences. The drivingoffences were particularly serious with the appellant driving not only while under theinfluence of methamphetamine, cannabis and Diazepam, but ultimately causing hisvehicle to collide with a curb and roll onto its side. There were also aggravatingfeatures: the offending occurred while Mr Meads-Petley had been subject to releaseconditions; and he had relevant previous convictions including dangerous driving,failing to stop, assaulting a police officer and speaking threateningly, all committed in2019.[35] Taking these factors into account, Ms Banuelos submits that an uplift of ninemonths' imprisonment was appropriate for denunciation and deterrence.Discussion[36] There are two aspects to this appeal. First, whether the starting point of 18months' imprisonment was too high. Secondly, whether an uplift of nine or 10 months'imprisonment was too high.16 Dockerty v Police [2012] NZHC 2500.17 At [11].[37] I accept Ms Treanor's submission that the starting point of 18 months'imprisonment for the lead offence was out of step with comparator cases.18 This is notto minimise the offending which was aggravated by the long term impacts of spittingbloodied saliva, but consideration of the cases referred to me by counsel indicates tome that a starting point of 14 months' imprisonment is more appropriate. This reflectsthe fact that the saliva was bloodied at the time and that he spat directly at theconstable's face, warranting a higher starting point than, for example, Kumar wherethe appellant merely spat at the constable's trousers.[38] I also consider that the uplift reflecting the balance of the offending was toostern in the circumstances. I acknowledge Ms Banuelos's submission that this upliftwas to reflect more than merely the remaining charges. I agree that offending whilesubject to release conditions and the relevant previous convictions must be recognised.In particular, the convictions for dangerous driving, failing to stop, assaulting a policeofficer and speaking threateningly, all from 2019, are plainly relevant in this regard. Iconsider that an uplift of six months' imprisonment would have been sufficient in thecircumstances.[39] It is not clear precisely what discount was allowed by the District Court Judgefor the appellant's age, personal circumstances and guilty pleas. I consider it mostlikely that an uplift of 10 months was applied for the balance of the offending and thatthe Judge allowed discounts of 25 percent for mitigating factors. I do not propose todisturb those discounts. In the circumstances, adopting a starting point of 14 monthsrather than 18 months' imprisonment, applying an uplift of six months and discountsof 25 per cent, results in an end sentence of 15 months' imprisonment.18 R v Taurere HC Whangarei CRI-2011-488-000030, 7 July 2011 citing at [25], n 4: Taiapa v R[2011] NZCA 48 (three months for assaulting a prison officer); R v Chiyabi [2008] NZCA 10(three months for head butting a Police Officer); Cooper v Police HC Auckland CRI 2009-404-261, 9 November 2009 (one month imprisonment for kicking an officer in the chest and lowerbody); Einan v Police HC Hamilton CRI 2005-419-20, 23 February 2005 (seven days'imprisonment for spitting at a Police Officer); Gurney v Police HC Auckland AP116/96, 26November 1996 (three months' periodic detention for kneeing a Police Officer in the groin andtwo months' periodic detention for biting a Police Officer's hand); Wall v R [2010] NZCA 494 (12months' intensive supervision for spitting at a Police Officer); Rameka v Police HC WhangareiCRI 2010-488-050, 3 December 2010 (150 hours' community work for assault Charge, no detailsgiven); Waata v Police HC Nelson AP10/02, 27 June 2002 ($400 fine for pushing a Police Officer).Result[40] The appeal is allowed.[41] The sentence of 21 months' imprisonment is quashed. A sentence of 15months' imprisonment is substituted in its place.[42] It was not advanced by counsel in argument nor do I propose to alter theJudge's decision to grant leave for substitution of the sentence for a full-timeresidential rehabilitation program. The Judge's perception that Mr Meads-Petley'soffending is fuelled by drug and alcohol abuse, and his effort to incentivise him toaddress it, is motivated by regard for this young man's future. I see Mr Meads-Petleyas displaced by his removal from his primary family at a relatively young age throughdeportation, without sufficient support and absent any purpose. Rehabilitativeintervention is needed both to treat his drug and alcohol dependency and to providehim with some opportunity to turn things around. I note that his grandmother hasoffered post release support.[43] This sentence remains subject to the standard and special release conditionscontained in the pre-sentence report as recorded in the District Court judgment.............................................................Walker J