WHITE v NZ POLICE [2019] NZHC 1818

WHITE v NZ POLICE [2019] NZHC 1818 [30 July 2019]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI 2019-412-17[2019] NZHC 1818BETWEEN DAMIEN GARY WHITEAppellantAND NEW ZEALAND POLICERespondentHearing: 29 July 2019Counsel: B P Kilkelly for AppellantR Smith for RespondentJudgment: 30 July 2019JUDGMENT OF SIMON FRANCE J[1] Mr White appeals a sentence of three years and two months' imprisonmentimposed in relation to a number of charges, the most serious of which was attemptingto pervert the course of justice.1Facts[2] Mr White was first charged with male assaults female, the victim being aformer partner he had encountered down town. It involved a single punch to the leftcheek.1 New Zealand Police v White [2019] NZDC 6282.[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 doorswhich eventually led Mr White to arm himself with a hammer. He raised it in athreatening 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 washungry 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 byeach side applying force near the temples. He then left, slamming the door so hard asto shatter its glass. He was arrested soon after and found at that time in possession ofthe methamphetamine pipe. The pipe is undoubtedly a pointer to Mr White's erraticbehaviour.[5] Three days later, Mr White was in Court in relation to these matters. Mr Whitewas 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, thenoccurred. Mr White was in jail and rang his former partner who was the victim of thetwo 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 wasincorrect, and it seems Mr White was frustrated about this. That aspect was correctedin her affidavit, and the charge based on it was ultimately dropped. However, theinstructions went well beyond that and plainly induced her to lie. Inducing the falseaffidavit reflects the control Mr White had over his victim and is an aggravating aspectof the charge.Sentencing[7] The Judge took a starting point of two years and three months' imprisonmentfor the charge of attempting to pervert the course of justice. There were then a seriesof 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 incidentwhich had been charged as theft, intimidation and wilful damage.[8] This 17 months' of uplifts left a total starting point of three years and eightmonths' imprisonment, but this was adjusted for totality reasons back to three years,three months. However, there were then further uplifts for past offending (threemonths) and for offending while on bail (three months), leaving the final aggravatedstarting point at three years and nine months' imprisonment. Fifteen per cent creditwas 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 thestarting point for perverting the course of justice cannot be challenged.2 I observe theCrown position is that this concession is inevitable as the starting point is arguably toolight given that the vehicle for Mr White's offending was the woman he had twiceassaulted in a domestic context.[11] The first challenge raised on the appeal concerns the various uplifts for theother offending, it being contended the escaping charge in particular could have beenless. 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 considerable2 R v Maney [2018] NZCA 193.risk to court staff, counsel and the public. That such a risk was not great in the presentcase keeps the level of sanction down, as it has here, but there is always a need to befirm 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 mitigatingfactors. 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 firstassault, the charges arising from the shop incident and the escaping. The plea to thelatter had been intimated in October. He was to be sentenced on these in January, butthe Judge that day determined that the existence of the related outstanding charges,particularly another assault against the same victim, meant sentencing should bedeferred 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 pleacredit, but it needs to be considered if that has occurred.[14] Mr Kilkelly argues that the pleas in December merited 10% credit. That seemsa reasonable assessment. The uplifts imposed for these offences (ignoring theadjustment down for totality reasons) was 15 months. This would mean a credit ofone month (or sometimes two).[15] There was a global 10 per cent discount for the guilty pleas. It is not easy tounpackage it all, especially when this credit was combined with that for restorativejustice. It is clear, however, that a total of seven months was given. My broadassessment is that 1.5 months was given for the earlier offending, 3.5 months for theother offending, and two months for the restorative justice component. The 1.5 monthsallowance accords with the figure Mr Kilkelly submits should have been given to theearlier offending, so I consider no error has occurred there.[16] As for the 3.5 months for the remaining two offences, again more detail isneeded. While on the face of it the pleas occurred on the morning of trail, it issubmitted that is misleading. The trial was originally scheduled for 1 April. It wasonly on 23 January that the new date of 28 January was allocated. Mr Kilkelly couldnot 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 timein January for a trial due to take place in April. Has that occurred there would havebeen some trial preparation saving. But the pleas were delayed, however one looks atit. Further, as regards attempting to pervert the course of justice, there simply was nodefence. 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 positiverestorative justice meeting that occurred with his former partner. The report backindicated Mr White had taken responsibility, indicated genuine remorse, and acceptedthe victim's statement that the relationship was at an end. This was submitted to be apositive sign for the future.[19] On this aspect the Crown notes the victim was also effectively a co-conspiratoron the perverting the course of justice, and so a supportive response to the appellantshould be assessed in that light. I do not agree with this point. The victim was notcharged, a fact I imagine reflects the coercive nature of the relationship. Insight onthe part of an offender in these sort of circumstances is to be welcomed, as is achievingan acceptance the relationship is over. This in turn lessens risks of future conflict andoffending . 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 doubtseems severe to Mr White when one focusses on these offences. However, the additionof an offence of attempting to pervert the course of justice always significantlyelevates the sentencing outcome, such is the level of deterrence attaching to it. Thesentence on that offence was by no means a severe one and overall the outcome is notin error.[21] The appeal is dismissed._________________________Simon France J