PUATA v NEW ZEALAND POLICE [2016] NZHC 1323

PUATA v NEW ZEALAND POLICE [2016] NZHC 1323 [17 June 2016]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYCRI-2016-470-000006[2016] NZHC 1323BETWEEN DAVID RANGIKAIAMOKURA PUATAAppellantAND NEW ZEALAND POLICERespondentHearing: 14 June 2016(Heard at Rotorua)Appearances: V T Winiata for AppellantS J P Davison for RespondentJudgment: 17 June 2016JUDGMENT OF GILBERT JThis judgment is delivered by me on 17 June 2016 at 4 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarCounsel/Solicitors:V H Winiata, Barrister, TaurangaHollister-Jones Lellman, Tauranga[1] Mr Puata pleaded guilty to and was convicted of one charge of male assaults female on 1 October 2015 and two charges of breaching a sentence of supervision by failing to attend a living without violence programme as directed by his probation officer on 11 and 18 May 2016.[2] On 28 January 2016, Judge Coyle sentenced Mr Puata in the District Court at Tauranga to an effective end sentence for these three charges of 11 months'imprisonment.1 This sentence was arrived at as follows:Starting point on lead offence - nine months' imprisonmentUplift for prior convictions - three months' imprisonmentDiscount for guilty plea - two months' imprisonmentEnd sentence on lead offence - 10 months' imprisonmentStarting point for lesser offences - six weeks' imprisonmentDiscount for guilty plea - two weeks' imprisonmentEnd sentence on lesser offences - one month imprisonmentEffective end sentence (cumulative) - 11 months' imprisonment[3] Mr Puata appeals against his sentence on the ground that it is manifestly excessive as a result of the following errors:(a) The starting point for the lead offence of male assaults female of ninemonths' imprisonment was too high.(b) The uplift of three months' imprisonment for prior offending, which attracted a sentence of 80 hours' community work and supervision,was too high.(c) Discounts ought to have been allowed for personal mitigating factorsincluding Mr Puata's comparative youth and disadvantagedbackground.1 New Zealand Police v Puata [2016] NZDC 1329.(d) A 25 per cent discount should have been allowed for the guilty plea, rather than the 18 per cent allowed.(e) The starting point adopted for the breaches of supervision was too high.Was the starting point on the lead offence too high?[4] The summary of facts to which Mr Puata pleaded guilty describe the offending in the following way:CIRCUMSTANCESAt about 6.25 pm on Thursday 1 October 2015 the defendant PUATA was at his home address on Ross Road Whakamarama. He was with his sister, who is the victim in this matter and two associates. Also in the house were three children under the age of five.An argument developed between the defendant and victim, when he was asked to leave because of his behaviour. During the argument the defendant has pushed the victim multiple times, hard enough for her to stumble backwards.When others have attempted to intervene, the defendant has struck the victim in the face and head several times, causing her to fall to the ground.The defendant has continued acting aggressively. The victim has again attempted to stop the defendant by hitting him over the head with a ceramic pot before barricading herself in her bedroom with the children.After the defendant left the house the victim and children have left the bedroom. They have then left the house due to fears for their safety.INJURIES TO VICTIMThe victim had a visible bruise to her face.[5] It was accepted that there is an error in this summary of facts in that thevictim was not Mr Puata's sister but a friend of hers. However, the summary correctly notes that Mr Puata's sister hit Mr Puata over the head with the ceramic vase.[6] The probation officer recommended intensive supervision and community detention to give Mr Puata, who was 19 years of age at the time of the offending and has a disadvantaged background, an opportunity to address his rehabilitative needsthrough attendance at a living without violence programme and through drug and alcohol counselling. The probation officer was concerned that a sentence ofimprisonment could increase Mr Puata's risk of re-offending upon release.[7] The Judge rejected the probation officer's recommendation, describing it as "entirely inadequate". The Judge stated that Mr Puata had "thumbed [his] nose atthe Court and at probation by repeatedly not engaging despite repeated and strenuous efforts to try and get [him] to engage". The Judge considered that Mr Puata had demonstrated that he was "not capable of complying with a community-basedsentence". While the Judge acknowledged that the offending would normally attractan electronically monitored sentence, he discounted this prospect because Mr Puata had no suitable address. The only available address was with his father, who was on parole and is a former patched gang member.[8] I consider that the Judge overstated the position when he said that Mr Puatahad "thumbed [his] nose" at the Court and at probation and was incapable ofcomplying with a community-based sentenced. Mr Puata duly completed his sentence of 80 hours' community work received for earlier offending. He alsosuccessfully completed a Tikanga Maori programme. Mr Puata attended an initial assessment to determine his suitability to attend a living without violence programme. He was assessed as being suitable and directed to attend this programme on Monday evenings commencing on 11 May 2015. Mr Puata failed to attend on the first two occasions, 11 and 18 May 2015, and was accordingly exited from the course on 21 May. His failure to attend these initial sessions forms the basis of the two breaches of supervision charges. The probation officer reported that Mr Puata explained that his non-attendance was partly due to transport difficulties (Mr Puata is disqualified from driving) but he also acknowledged that a lack of motivation was a contributing factor.[9] In all of the circumstances, this cannot fairly be described as Mr Puata thumbing his nose at the Court or at the Probation Service. Mr Puata has demonstrated through his substantial compliance that he can serve a community- based sentence.[10] The Judge was also concerned that the assault occurred in the presence of three children aged under five:2Concerningly from my perspective, there were three children present underfive It is an assault which was an act of violence within a home and occurred in front of children. I am enormously troubled by the fact that children were present [11] The summary of facts states that there were three children in the house aged under five but does not state that the assault occurred in front of them. The victimimpact statement records that the victim's four year old daughter saw the assault andthis is what the Judge may have relied on. However, Mr Davison accepts, as did the Judge, that the victim impact statement is incorrect in material respects. For example, it states that Mr Puata punched the victim and knocked her out whereas it is accepted that Mr Puata struck the victim but did not punch her and she was not knocked unconscious.[12] I consider that the Judge should not have sentenced Mr Puata on the basis that the assault occurred in front of three children under five when this was not referred to in the summary of facts to which Mr Puata had pleaded guilty and was not stated in any other material before the Court. This appears to have been animportant factor influencing the Judge's sentencing decision given his statement that he was "enormously troubled" by it. Before relying on such a significant factor indeciding to impose a sentence of imprisonment rather than the recommended community-based sentence which the Judge recognised would normally be appropriate, the Judge should have sought clarification instead of leaving the matter to inference from a manifestly inaccurate victim impact statement. If necessary, the matter could have been determined at a disputed facts hearing.[13] There is no tariff for the offence of assault by male against female for the obvious reason that the circumstances of such offending can vary so greatly.2 At [3], [6] and [10].However, the starting point adopted of nine months' imprisonment appears excessivewhen compared with other comparable cases.[14] In R v Reihana, the Court of Appeal considered that a starting point of 10 months was manifestly excessive in circumstances where the appellant had punched his partner once in the eye, knocking her to the floor.3 The victim suffered bruising and swelling to her eye, almost to the point of complete closure. Her eyebrow was split open and required sutures. The Court substituted a starting pointand end sentence of five months' imprisonment.[15] In Dockerty v Police, the appellant placed his partner in a headlock, pushed her over, dragged her from a car and threw her to the ground.4 Shortly afterwards, the appellant was stopped by police, arrested and transported to the police station.While at the police station, the appellant spat on a police constable's face and headon several occasions and later bit a police sergeant on his arm. Kós J described the offending as "nasty and violent" and noted that it resulted in a protection order being granted. The Judge upheld a starting point of nine months' imprisonment for the totality of this offending.[16] Counsel referred to Rogers-Millar v Police in which Gendall J upheld a starting point of nine months' imprisonment for what was described as "repeated and sustained violence over a period of time" against a victim who was not capable ofdefending herself.5 In that case, the appellant rang his partner on numerous occasions throughout the evening and verbally abused her. After arriving home, he continued to verbally abuse the victim and followed her into their bedroom where he slapped her twice on both sides of the face. He then grabbed her around the throat and pushed her onto the bed. He climbed on top of her, pinning her to the bed, and then punched her twice in the head with a closed fist. After the victim freed herself, the appellant continued to verbally abuse her and smashed her laptop and video game. The victim suffered bruising to her face and bruising and grazes to her arms.3 R v Reihana CA 143/03, 3 July 2003.4 Dockerty v Police [2012] NZHC 2500.5 Rogers-Millar v Police [2014] NZHC 2433.[17] The assault in the present case was less serious than in Reihana and the injuries were more minor. The assault in Rogers-Millar was more prolonged and more serious and included the victim being punched in the head twice with a closed fist while she was defenceless, having been pinned down. The assault in the present case is more comparable to the initial assault in Dockerty but the starting point ofnine months' imprisonment adopted in that case also reflected the separate offendingof spitting several times in the police constable's face and biting the police sergeant'sarm.[18] In my view, the starting point adopted in the present case of nine months'imprisonment was out of range. I accept Mr Winiata's submission that a starting point of six months' imprisonment should have been applied.Was the uplift of three months for prior offending too high?[19] On 27 January 2015, Mr Puata was sentenced to 80 hours' community work and nine months' supervision for three offences committed on 10 November 2014 (male assaults female, common assault and wilful damage) and one offence committed on 16 August 2014 (common assault). The Judge applied an uplift ofthree months' imprisonment to reflect this prior offending.[20] Mr Winiata submits that although some uplift would have been appropriate,an uplift of 90 days' imprisonment is wholly disproportionate considering that theprior offending only attracted 80 hours of community work. I agree. While the Judge was entitled to take into account Mr Puata's prior convictions and the need toimpose a sentence that would deter him from further similar offending, the uplift applied is out of all proportion to the original penalty imposed and is of such duration that it must include an element of impermissible double punishment for the past offending.[21] I consider that an uplift of one month of imprisonment would have beensufficient to recognise Mr Puata's prior offending.Should a discount have been allowed for personal mitigating factors?[22] Mr Puata was 19 years of age at the time of the offending and has had a disadvantaged upbringing. While he was growing up, his father, a former patched gang member, spent considerable periods in jail. His parents are separated and Mr Puata has a difficult relationship with his mother and sister, the victim of the earlier assaults. Mr Puata has no formal trade or educational qualifications and is unemployed. He has no goals for the future, lacks direction and suffers from depression. He is, however, willing to engage in any employment offered and has worked as a labourer from time to time.[23] The Judge declined to allow any discount for these personal mitigating factors because he took the view that Mr Puata had declined to accept assistance that had been repeatedly offered to him:6As Mr Winiata has submitted, the PAC report indicated that you have issues arising out of the consequences in part of your upbringing. You have had opportunity to address those issues, clearly at least through the most recent sentence of supervision. Your response to that has been to fail to engage with the very programme which is designed to address the issues that are behind your offending. Despite repeated attempts by probation to get you to front and have a meeting with your probation officer, you have ignored them.[24] The Judge was not correct in stating that Mr Puata had failed to meet with his probation officer. He completed his sentence of community work, he attended the assessment for the living without violence programme and he reported to the probation officer on 16 occasions. Although he failed to attend the first two evening sessions of the programme, this is partly explained by the transport issue arising out of him being a disqualified driver. Despite Mr Puata not attending all of the required appointments, this did not deter his probation officer from recommending a sentence of community detention coupled with intensive supervision. This indicates that theProbation Service did not regard Mr Puata's attitude or compliance record as disqualifying factors, rendering further rehabilitative efforts unworthwhile.6 At [7].[25] I consider that the Judge ought to have allowed a discount for these personalmitigating factors and to take account of Mr Puata's comparative youth. In my view, a discount in the order of 10 per cent would be appropriate.Was the discount for the guilty plea adequate?[26] Mr Puata was initially charged with assault with intent to injure. This charge was clearly not appropriate and Mr Puata justifiably pleaded not guilty to it. The charge was subsequently reduced to one of male assaults female, on 17 December 2015. Mr Puata immediately entered a guilty plea, that day.[27] The Judge stated that "there is no way that this was anywhere near a guiltyplea entered at the earliest opportunity".7 Mr Davison accepts that this was an error. The guilty plea could not have been entered any earlier. There is no dispute that Mr Puata was entitled to the full 25 per cent discount for his early guilty plea.Was the starting point too high for the breaches of supervision?[28] Mr Winiata advises that first breaches of a sentence of supervision are routinely dealt with in the District Court by conviction and discharge. He states that"the price goes up" for second and subsequent breaches. However, this does not mean that the Judge was wrong to impose a more significant penalty. Mr Winiata accepts that.[29] Nevertheless, Mr Winiata submits that a starting point of six weeks'imprisonment for failing to attend two Monday evening sessions of the living without violence programme is manifestly excessive, particularly given that Mr Puata has no prior record of breaching community-based sentences or Court orders and did attend the initial assessment.[30] As discussed, the Judge was not justified in concluding that Mr Puata had"thumbed his nose" at the Court and the Probation Service. Although Mr Puata frankly acknowledged to the probation officer that a lack of motivation was a contributing factor, his failure to attend appears to have been partly explained by the7 At [13].fact that he was a disqualified driver and unable to arrange transport. These breachesalso need to be viewed in the context of Mr Puata's substantial compliance with the Court's orders.[31] I consider that the Judge overstated the seriousness of these breaches and consequently adopted a starting point that was too high. In my view, a starting point no higher than one month imprisonment could be justified. The Judge was correct to allow a 25 per cent discount to reflect Mr Puata's early guilty plea to these charges.Conclusion[32] The sentences imposed were manifestly excessive. It is questionable whether Mr Puata should have been sentenced to imprisonment. In any event, taking into account the adjustments discussed, the effective end sentence of 11 months'imprisonment should be set aside and replaced with an effective end sentence of fiveand a half months' imprisonment on all charges.Result[33] The sentence of 10 months' imprisonment on the charge of male assaultsfemale is set aside and replaced with a sentence of five months' imprisonment. The sentence of four weeks' imprisonment on the charges of breaching supervision are set aside and replaced with a sentence of two weeks' imprisonment. These sentencesare cumulative so the effective end sentence on all charges is five and a half months'imprisonment.[34] The special conditions imposed in the District Court, which are to apply for six months after the sentence expiry date and which are as set out in the pre-sentence report, will remain.________________________M A Gilbert J