MALUPO v POLICE [2018] NZHC 801

MALUPO v POLICE [2018] NZHC 801 [26 April 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-048[2018] NZHC 801BETWEEN DEREK MALUPOAppellantAND NEW ZEALAND POLICERespondentHearing: 23 April 2018Counsel: V Heather for AppellantI Ko for RespondentJudgment: 26 April 2018JUDGMENT OF WHATA JThis judgment was delivered by me on 26 April 2018 at 3.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Kayes Fletcher Walker Limited, Manukau[1] Mr Malupo was sentenced to six months' community detention and 18 months'intensive supervision in relation to multiple charges, including burglary, possession ofan offensive weapon, threatening behaviour, dangerous driving, failing to stop, and ill-treatment of a child. He breached the conditions of his sentence. He was re-sentencedto 27 months' imprisonment, taking into account the breaches. He now appeals againstthat re-sentence as manifestly excessive.Background[2] Mr Malupo pleaded guilty to the following matters.Burglary[3] On 28 February 2016, Mr Malupo entered a residential home and burgled itemsfrom the house, which were in total valued at $3500. The items stolen included anXbox console, Toshiba laptop, Microsoft laptop, and a small digital tablet in an Adidasbag. The victim and his five-year-old son entered the property, and found Mr Malupoinside the house. Mr Malupo was chased by the victim until he was apprehended bymembers of the public.Threatening behaviour[4] On 26 March 2016, Mr Malupo argued with his long-term partner and, whilsthis partner was sitting outside on a deck by their garage, Mr Malupo hit the garageabove the victim's head with a shovel.Failing to stop, driving in a dangerous manner, ill-treatment of a child, possession ofan offensive weapon[5] On 24 June 2016, Mr Malupo was driving a car with his partner and their four-year-old son. The son was sitting on his mother's lap in the front passenger seat of thecar, and was unrestrained. A Police Officer attempted to pull the car over by activatingthe red and blue lights of his vehicle, but Mr Malupo drove away at speeds of 80 km/hin 50 km/h zones. At one stage, he crossed the centre line onto the wrong side of theroad because he could not control his vehicle at the speed he was travelling.Mr Malupo eventually stopped and ran from his car. The Police found the childstanding in the front passenger's footwell of the car, and also found a machete in thedriver's side footwell.[6] Mr Malupo also failed to answer District Court bail on two occasions.Judge Blackie's sentencing indication[7] Judge Blackie gave a starting point of two and a half years' imprisonment,"bearing in mind" Mr Malupo's previous convictions, the fact he is a recidivist burglar,and that the burglary was serious, based on the value of the items stolen and theconfrontation with the occupants. He indicated that there may be a discount, but itwould be a sentence of imprisonment.Judge McIlraith's sentencing[8] Judge McIlraith noted that Mr Malupo had been on remand for seven months,and referred to Judge Blackie's sentence indication. However, Judge McIlraithsentenced Mr Malupo to six months' community detention and 18 months' intensivesupervision. He based this on the time Mr Malupo had spent in custody (sevenmonths), the support he had, his willingness to engage in rehabilitation and his workprospects. Mr Malupo was also disqualified from driving for six months for thedangerous driving charge and for a further three months after that for failing to stopfor the Police.Judge Andrée Wiltens' sentencing[9] Judge Andrée Wiltens recorded Judge Blackie's sentencing indication and heobserved that Judge McIlraith factored into account the seven months spent in custodywhen imposing a community-based sentence. The Judge then rejected a community-based re-sentence. He said:[4] Mr Heather says that I should deal with you within the community. Iregret to say that I cannot. It seems to me that to do that is to ignore some ofthe fundamentals that are set out in the purposes and principles of sentencing.Most of those involve deterrence, holding you accountable for your offending,but protecting the community is a big one and then dealing with the actualmechanics, if you like, of sentencing, making sure that you get sentenced inthe same way as others in your like situation have been sentenced and endingup with the least restrictive outcome that is available, taking into accountpossibilities of rehabilitation and things of that kind.[10] Judge Andrée Wiltens set a starting point of two years' imprisonment. Infixing this starting point, he included a six-month discount for Mr Malupo's sevenmonths in custody. He then uplifted for the new offences, including two breaches ofthe community sentence and driving while disqualified (third and subsequent), whichresulted in a starting point of two and a half years' imprisonment. He then reduced thesentence to 27 months' imprisonment to reflect the guilty pleas. Mr Malupo was alsodisqualified from holding or obtaining a drivers licence for 18 months, backdated to26 January 2017.[11] The Judge also observed:[7] The one thing that I think shines through here is that you prefer to bein prison than within our community. You keep offending. It is very easy notto offend. The things that you are doing are not difficult. You are just doing itbecause you cannot control yourself or you do not want to control yourself.You do not have to drive without a license yet you do so. You can comply withthese rehabilitative sentences very easily if you choose to do so. It is yourchoice and at the moment you are choosing to go to jail which is not a verysmart choice, it seems to me. Once you have served your sentence this time, Ihope you have learnt your lesson and do not come back.The frame for re-sentencing[12] Section 69I of the Sentencing Act 2002 sets the frame for re-sentencing. Itstates:69I Variation or cancellation of sentence of community detention(1) An offender who is subject to a sentence of community detention, ora probation officer, may apply, in accordance with section 72, for anorder under subsection (3) on the grounds that—(a) the offender is unable to comply, or has failed to comply, withany conditions of the sentence; or(b) .(c) .(2) .(3) On an application under subsection (1) or (2), the court may, if it issatisfied that the grounds on which the application is based have beenestablished -(a) suspend or vary the curfew period; or(b) vary the curfew address; or(c) cancel the sentence; or(d) cancel the sentence and substitute any other sentence(including another sentence of community detention) thatcould have been imposed on the offender at the time that theoffender was convicted of the offence for which the sentencewas imposed.(3A) (4) When determining a substitute sentence to be imposed undersubsection (3)(d), the court must take into account the portion of theoriginal sentence that remains unserved at the time of the order.[13] The leading authority for re-sentencing of breaches of community-basedsentences is R v Morgan.1 Relevantly to the present case, the Court noted:[15] Accordingly, while we accept that there must be some proportionalitybetween the sentence originally imposed and the substituted sentence, we donot consider that there can be any strict correlation between them, much lesssome mathematical formula. The essential point is that the substitutedsentence must be one that could properly have been imposed initially; and itmust be imposed against the background that a sentence of community workwas thought initially to be appropriate. In the present case, the appellant'sfailure to make any real effort to comply with the community work sentencemeant that a community based sentence was unsupportable and a sentence ofimprisonment inevitable. But such a sentence had to be imposed against thebackground that a sentence of 150 hours of community work was initially seenas the appropriate sentence.[14] The Court of Appeal in that case held that the re-sentence of eight months'imprisonment bore no relationship to the original sentence of 150 hours communitywork or the factors which gave rise to it, and was wrong in principle. The Courtimposed instead a sentence of three months' imprisonment for assault with a weapon,two months for the breach of community work and one month for a trespass charge.1 R v Morgan [2008] NZCA 232.[15] I am also assisted by the decision of Ellis J in Hough v Police.2 In that decision,the Judge considered specifically the effect of s 64I(4). The Judge notes:[20] I accept entirely that there is no mathematical conversion formula andthat a resentencing may legitimately involve a modicum of increased firmness.That said, however, the sentence should not include sanction for any breachof the earlier sentence and there is a need for overall proportionality. But themost important reality here is that Mr Hough had very nearly completed hisoriginal sentence. Moreover, the fact that he did not complete it was largely(if not wholly) due to the fact that he was denied bail in relation to his later,separate offending.[16] For my part, the foregoing statements devolve into the following propositions:(a) The sentence must be one that could have been imposed initially;(b) The re-sentence must not include an element for the breach of theoriginal sentence;(c) There must be some proportionality between the sentence originallyimposed and the substitute sentence, but there does not need to be anystrict correlation between them;(d) Re-sentencing may legitimately involve a modicum of increasedfirmness; and(e) The re-sentencing judge must have regard to the unserved part of theearlier sentence.Argument[17] Mr Heather submits for Mr Malupo:(a) Judge Wiltens failed to consider the portion of the original sentenceremaining unserved.2 Hough v Police [2017] NZHC 93.(b) The basis for Judge Wiltens' starting point of 30 months is unclear.(c) The remainder of the community detention sentence (three months) wasthe equivalent to a sentence of six months' imprisonment and thereforean effective substituted sentence of 24 months' imprisonment wasmanifestly excessive.(d) Judge McIlraith's decision to impose a rehabilitative end sentencereflected the fact that the appellant had served already seven months incustody.[18] Mr Ko submits the re-sentence was not manifestly excessive:(a) The starting point adopted by Judge Wiltens for re-sentence was wellwithin the range available to him for the offending and Mr Malupo'shistory of prior offending;(b) The re-sentence broadly correlates to the original sentence, noting thatcommunity detention and a lengthy period of intensive supervision isclose to imprisonment in the sentencing hierarchy; and(c) The re-sentencing exercise had to incorporate three new charges,including driving while disqualified.[19] Mr Ko notes that the only available criticism is that Judge Wiltens failed torefer to the portion of the original sentence already served.Assessment[20] The evaluation of the appropriate sentence is complicated by the combinedsentencing for the two rounds of charges. I have found it necessary to disaggregatethe sentence to assess whether the sentence handed down on the initial offending andthe offending overall by Judge Wiltens is manifestly excessive.[21] Dealing first with the starting point for the initial charges. A starting point oftwo years six months was within the range of sentences available to Judge Wiltens forthe initial offending (including an uplift for prior offending).3 However:(a) a discount of six months for time served was not available to the Judgeper s 82 of the Sentencing Act;(b) no discount appears to have been given for guilty pleas to the originalcharges (though the guilty discount for the second-round of offendingappears excessive at 3 months or 50 per cent);(c) no apparent consideration has been given to proportionality betweenthe initial sentence and the resentence; and(d) no regard was given to the remaining part of the sentence to be servedper s 69I(4).[22] Given this combination of apparent errors and omissions, I am satisfied Ishould examine the sentence afresh.[23] First, I adopt the starting point of two years six months for the initial offending(and prior offending) on which Mr Malupo was originally sentenced. It appears to bethe same starting point used by the sentencing Judges. Unlike those sentencing Judges,I do not discount the sentence for the time in custody. That is a matter for Corrections.Turning to personal circumstances, a small discount for Mr Malupo's genuine attemptsat rehabilitation of 5 per cent would have been available at the time of the initialsentencing. However, while the breaches of his original sentence are not aggravatingfeatures, a discount for this factor is no longer appropriate.[24] So only a discount for guilty plea is available. There is scant informationavailable to me about when Mr Malupo pleaded guilty. It was plainly not at the firstavailable opportunity. He did not accept the sentencing indication and served sevenmonths in prison at the time of sentence. Mr Ko agreed, however, that a discount of3 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].10-15 per cent might be appropriate. This would equate to a discount of three to fivemonths. An end re-sentence therefore of 25-27 months would appear to be justifiedfor the initial offending.[25] I must then look to proportionality with the first sentence and the quantum ofthe sentence to be served. I agree with Mr Ko that the combination of six monthscommunity detention and 18 months intensive supervision is sufficiently close to thesentence of imprisonment on the sentencing hierarchy to treat it as broadly comparableto a short sentence of imprisonment. I do not accept, however, Mr Heather'ssubmission that it is appropriate to adopt a two (months of imprisonment) to one(month of community detention) ratio based on the formula sometimes used for fixinga home detention sentence. A sentence of community detention does not involve thesame level of incursion on personal liberty as either home detention or imprisonment.[26] As to the term of imprisonment, Mr Malupo had 50 per cent of his communitydetention to serve and 80 per cent of his intensive supervision. In my estimate, thisbroadly correlates to two-thirds of the original sentence left to be served. On a broadpro-rate basis, this would suggest a reasonable end point of 17 to 18 months for theinitial offending, in light of the original sentence, and the balance of the sentence tobe served.[27] Mr Malupo must also be sentenced for the driving while disqualified (third andsubsequent) and the breaches. Unfortunately, I do not have a detailed account of thefacts of this offending. In any event, a combined sentence of six months, less 25 percent for guilty pleas, or 1.5 months, is appropriate. As a result, an end sentence ofabout 22 to 23 months on all offending would fairly serve the purposes and principlesof sentencing, in light of the original sentence.[28] Accordingly, the difference between the sentence fixed by the Judge(27 months) is about 4-5 months or 17-23 per cent higher than my calculation. I amsatisfied therefore that the re-sentence was manifestly excessive. I therefore allow theappeal, set aside the sentence of 27 months and replace it with a sentence of 23 months.As noted, it will be for Corrections to consider the time served by Mr Malupo.