PUATA v NEW ZEALAND POLICE [2017] NZHC 2006

PUATA v NEW ZEALAND POLICE [2017] NZHC 2006 [22 August 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-000252[2017] NZHC 2006BETWEEN HINETAI PUATAAppellantAND NEW ZEALAND POLICERespondentHearing: 22 August 2017Appearances: W M Hite for AppellantC P Howard for RespondentJudgment: 22 August 2017ORAL JUDGMENT OF JAGOSE JSolicitors:Public Defence Service, ManukauKayes Fletcher Walker Limited, AucklandIntroduction[1] Ms Puata appeals the sentence of 14 months' imprisonment imposed on herby Judge Andrée Wiltens in the Manukau District Court on 26 June 2017. Ms Puata pleaded guilty to 11 charges, ranging from disorderly conduct to possession of methamphetamine.The offending[2] Ms Puata's offending occurred on a number of discrete occasions betweenSeptember 2016 and April 2017.[3] On 28 September 2016, Ms Puata was purchasing lunch from a Pizza Hut store located in the Southmall Shopping Centre in Manurewa. Ms Puata began yelling and swearing inside the store, and abused staff and customers. She was spoken to by the shopping centre's security personnel. She continued to yell abuse, and knocked down store signs as she exited the store. Ms Puata explained that she was angry at Pizza Hut staff for missing her order. As a result of this incident, Ms Puata was trespassed from the Southmall Shopping Centre for a period of two years, and was informed of the consequences of returning to the shopping centre during this period.[4] On 10 December 2016, Ms Puata entered the Hunters Inn hotel in Papatoetoe in an intoxicated state. She entered a patron's room and lay down on the bed, after which she was asked to leave the premises. Ms Puata exited the building. She then threw an object at the building's windows, breaking four panes and causingapproximately $700.00 in damage. Ms Puata says she broke the windows because she was not paid for her services. Ms Puata was arrested and brought to the Police Custody Unit in Manukau. Due to her intoxicated state and aggressive behaviour, the police were unable to process Ms Puata and she was placed in a cell.[5] Despite repeated efforts to process Ms Puata overnight, she remained uncooperative. The next morning, a police officer entered Ms Puata's cell with a cup of water and some Panadol. The officer was attempting to complete Ms Puata'sprocessing. Ms Puata used the cup the officer brought to the cell to obtain water fromthe cell's toilet. She was warned not to throw the water at the officer, but despite thisshe threw the water and it struck the officer's face and body. Ms Puata showed no remorse for her actions, mocking the officer the following day. The officer wasrevolted and disgusted by Ms Puata's assault, and angered by her continueddisrespect.[6] On 28 December 2016, Ms Puata was in the New World supermarket located in the Southmall Shopping Centre. She was running through the shopping centre and supermarket to evade security personnel. When apprehended by police, Ms Puata denied being trespassed from the supermarket. The trespass order issued to her as a result of her conduct three months earlier extended to the New World supermarket in the Southmall Shopping Centre.[7] On 4 April 2017, Ms Puata was arrested in Manurewa. When searched at the Manukau Police Station, police found two syringes, a needle, and a number of empty zip lock bags inside Ms Puata's hand bag. Ms Puata said she had used the needles for taking methamphetamine, but had not used methamphetamine for around one month.[8] On 26 April 2017, Ms Puata was arrested in Papatoetoe on breach of her bail conditions. On searching Ms Puata in the course of making her arrest, police found two syringes, two needles, and two small zip lock bags (one containing a white powder-like substance police believed to be methamphetamine) in her hand bag.The charges[9] In relation to the above offending, Ms Puata was charged with:(a) disorderly behaviour, carrying a maximum penalty of a fine not exceeding $1,000.00;1(b) wilful damage, carrying a maximum penalty of three months'imprisonment or a fine not exceeding $2,000.00;21 Summary Offences Act 1981, s 4(a).2 Summary Offences Act 1981, s 11(1)(a).(c) assaulting a police officer, carrying a maximum penalty of six months'imprisonment or a fine not exceeding $4,000.00; 3(d) trespass, carrying a maximum penalty of three months' imprisonmentor a fine not exceeding $1,000.00;4(e) two charges of possession of utensils for methamphetamine, eachcarrying a maximum penalty of 12 months' imprisonment and/or afine not exceeding $500.00;5 and(f) possession of methamphetamine, carrying a maximum penalty of sixmonths' imprisonment.6[10] Ms Puata was also charged with a series of bail-related offences:(a) failure to answer police bail, carrying a maximum penalty of threemonths' imprisonment or a fine not exceeding $1,000.00;7 and(b) three charges of failure to answer District Court bail, carrying amaximum penalty of 12 months' imprisonment or a fine notexceeding $2,000.00.8[11] Ms Puata pleaded guilty to all 11 offences.District Court decision[12] In the District Court, Judge Wiltens convicted and discharged Ms Puata on the charge of disorderly behaviour (relating to her conduct at the SouthmallShopping Centre's Pizza Hutt on 28 September 2016).9 He initially took a startingpoint of 16 months' imprisonment in respect of the other ten of Ms Puata's offences3 Summary Offences Act 1981, s 10.4 Summary Offences Act 1981, s 4(4).5 Misuse of Drugs Act 1975, s 13.6 Misuse of Drugs Act 1975, s 7(1)(a).7 Bail Act 2000, s 24.8 Bail Act 2000, s 38.9 At [4].on a "global basis".10 The Judge applied a two month uplift on account of Ms Puata's previous convictions, bringing the sentence to 18 months'imprisonment.11 He then gave Ms Puata a 25 percent discount for her guilty pleas,resulting in an end sentence of 14 months' imprisonment, with six months of release conditions.12[13] Noting he could not "actually impose that sentence unless [he made] it cumulative", the Judge made the sentence cumulative in respect of Ms Puata's threemethamphetamine-related charges "to equate to the 14 months".13 Ms Puata'ssentences on the other charges were to be concurrent.14[14] The record of hearing shows the structure of the end sentence as follows:(a) four months' imprisonment cumulatively on each charge of possessingutensils (ie, eight months' imprisonment consecutively);(b) six months' imprisonment cumulatively on the charge of possessing methamphetamine; and(c) one month's imprisonment concurrently on each of the other charges(except for disorderly conduct, on which Ms Puata was convicted and discharged).Grounds of appeal[15] Ms Puata contends her sentence is manifestly excessive, on grounds:(a) the imposition of cumulative sentences was wrong in principle, and practice; and(b) the imposition of the maximum penalty for methamphetamine possession was wrong in context.10 New Zealand Police v Puata [2017] NZDC 13681 at [5].11 At [6].12 At [7].13 At [9].14 At [10].Approach to appeals against sentence[16] Section 250(2) of the Criminal Procedure Act 2011 requires me to allow the appeal if satisfied:(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.In any other case, I must dismiss the appeal.15[17] The Court of Appeal in Tutakangahau v R confirmed s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.16 Despite s 250 making no express reference to "manifestly excessive", this standard for intervention is "well-engrained" in the court's approachon sentence appeals.17 There must be material error for appellate correction. This Court will not intervene where the sentence is within the range properly justifiable by accepted sentencing principle. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.18Appellant's submissions[18] Counsel for Ms Puata, Mr Hite, submits the Judge erred in imposing cumulative sentences:(a) —having regard to the guidance contained in s 84 of the Sentencing Act 2002: sections 84 and 85 of the Sentencing Act 2002 which provides cumulative sentences are "generally appropriate" where the offences in question are "different in kind", but "must not result in a15 Criminal Procedure Act 2011, s 250(3).16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27]. On the former approach, see R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].17 Tutakangahau at [33], [35].18 Ripia v R [2011] NZCA 101 at [15].total period of imprisonment wholly out of proportion to the gravity ofthe overall offending".Mr Hite says – because Ms Puata's offending took place over arelatively short time period of seven months, was generally of one kind of offending (being "nuisance behaviour"), and was all underpinned by the common factor of Ms Puata's "chaotic lifestyle"(featuring drug-use, petty crime, and prostitution) – the Judge erred in concluding cumulative sentences were appropriate; and(b) —as a means of correcting the approach to his earlier sentence endpoint of 14 months' imprisonment: Mr Hite says the Judge did not originally intend to impose a cumulative sentence, but did so insteadas a way to justify his chosen sentence of 14 months' imprisonmentafter the fact. Mr Hite says this is at odds with the guidelines in s 84 of the Sentencing Act 2002 (cumulative sentences should be imposed where the offences are different in kind or unconnected in execution).[19] Mr Hite also says the Judge erred in imposing the maximum penalty available on the charge of possession of methamphetamine. The Judge should nothave adopted Ms Puata's methamphetamine possession as the lead charge, as thewhite powder-like substance found in Ms Puata's hand bag after the arrest was never tested or weighed. Mr Hite further says the quantity of methamphetamine found inMs Puata's hand bag was "insignificant", and the Judge's starting point at the maximum of six months' imprisonment should have been reserved for offending "which is the most serious of [this] kind".[20] Mr Hite proposes a starting point of five months' imprisonment (on the lead charge(s) of possessing utensils), with a three month uplift for Ms Puata's other charges, and a further one month uplift for Ms Puata's previous relevant convictions. Mr Hite says Ms Puata was correctly convicted and discharged on the charge ofdisorderly behaviour. Mr Hite would apply a 25 percent discount for Ms Puata'searly guilty pleas.[21] Accordingly, Mr Hite submits a maximum end sentence of between six andseven months' imprisonment as most accurately reflecting the totality and gravity of Ms Puata's offending.Respondent's submissions[22] In response, the police say Judge Wiltens imposed an appropriate startingpoint with regard to Ms Puata's offending.[23] Given the "range and duration" of Ms Puata's offending, Mr Howard submits the Judge was correct to give a sentence exceeding the maximum penalty of any one charge, consistently with the principle articulated in Newton v Police (when sentencing for multiple offending, the focus should be on "whether the end sentence was manifestly excessive" and not on the individual sentences).19 Mr Howard also noted:(a) Wickliffe v Police, where an end sentence of 18 months' imprisonmentwas upheld for charges relating to possession of methamphetamine and its utensils, driving while disqualified, giving false information to police, and breaching conditions of non-imprisonment.20 This sentence consisted of cumulative and concurrent sentences; and(b) Newton v Police, where a starting point of 13 months' imprisonmentwas upheld for shoplifting, reckless driving, trespass, assault on a police officer, and breaching bail conditions. Again, this sentence consisted of both cumulative and concurrent sentences.[24] Against these considerations, Mr Howard says the Judge's sentence was within range. The Judge's two month uplift for Ms Puata's previous offending "could be characterised as generous", given the extent of her previous offending.19 Newton v Police [2014] NZHC 2805 at [23].20 Wickliffe v Police [2014] NZHC 3000.Was there an error in the sentence imposed on conviction?Cumulative approach regarding methamphetamine offences[25] A cumulative approach to the methamphetamine-related charges was appositehere. I do not accept Mr Hite's characterisation of Ms Puata's conduct as being of aseries of offences, connected by her 'nuisance behaviour'. Rather, her conduct wasof multiple offences separated by time and type, and ranging from minor to serious offending. There were weeks between the two utensil possession offences. Thesummary of facts notes Ms Puata's response to her arrest on the former was to say"she had not taken meth for about a month". From that perspective alone, possessionof methamphetamine is a separate and additional offence – this was not offendingthat occurred in "one transaction".21[26] More critically, the ultimate consideration when sentencing for multiple offending is the final sentence's reflection of all the offending at issue. R v Xiereiterates the "key principles" for sentencing on multiple offences: the sentencesmust reflect the "totality of the offending"; the "court will not insist the total sentence be arrived at in any particular way"; and the total sentence must "represent the overall criminality of the offending and the offender".22 The guidelines in the Sentencing Act regarding cumulative and concurrent sentencing "do not have theeffect of trumping the central principle of sentencing for multiple offending, namely the total sentence must represent the overall criminality of the offending and theoffender".23 Last, "where the total sentence appropriate for the totality of the offending exceeds the maximum penalty for any one offence, cumulative sentencingmust be used".24[27] The central question therefore is whether the Judge's final sentence reflects Ms Puata's overall criminality. The pre-sentence report notes, while Ms Puata's offending is a "continuation of her established offending pattern", overall her offending shows an "escalation".2521 R v Turnbull CA 85/78, 4 December 1978.22 R v Xie [2007] 2 NZLR 240 at [17].23 At [18].24 At [19].25 Department of Corrections Provision of Advice to Courts report dated 22 June 2017 at 2.[28] The Judge did not err in sentencing Ms Puata cumulatively in relation to the drug offences. The sentence also reflects Ms Puata's overall and escalating criminality, her "unstructured, self-destructive behaviours", and her "antisocial andpro-criminal group mores".26 Ms Puata's previous offending (which includesmethamphetamine possession), and the fact the majority of her current offending was while she was on bail, could easily have attracted a larger uplift than the two months imposed by the Judge.Erroneous starting point in relation to methamphetamine possession[29] Any relevance the police's lack of testing or weighing the white powder-like substance in Ms Puata's possession may have had against the sentence is negated byMs Puata's early guilty plea in relation to this, and all other, offences. She hasaccepted the substance was methamphetamine.[30] The Judge's six month starting point was not manifestly excessive. Section 7(2) of the Misuse of Drugs Act 1975 differentiates between penalties for Class A drugs (with maximum terms of six months' imprisonment) and drugs ofother classes (with maximum terms of three months' imprisonment). The indeterminate quantity of methamphetamine in Ms Puata's possession does notwarrant reducing her sentence to one within the range of Class B or C drugs.Should a new sentence be imposed?[31] Absent error, there is no basis to reconsider sentence. But standing back, even if different weighting was to be allowed to the cumulative offences – say, forexample, four and six months' imprisonment on the repeated utensil possession charges, and five months' imprisonment on the methamphetamine possession charge, uplifted by three months for prior offending and while on bail, and discounted by25% for Ms Puata's guilty plea – it would not materially change the outcome. There is any number of ways to distribute an appropriate sentence. More significantly, the sentence is in line with that in comparable cases, notably Wickliffe,27 involving non- violent drug offending in connection with other minor offending. I accept Ms Puata's26 At 2, 3.27 At footnote 20 above.prior offending is not as serious as Mr Wickliffe's but her sentence here was four months less. Manifest excess is not evident in the Judge's sentencing.Conclusion[32] In the end, I am not satisfied Judge Wiltens' approach resulted in a manifestly excessive sentence.[33] Ms Puata's final sentence should remain 14 months' imprisonment, with theJudge's release conditions. Ms Puata's appeal is dismissed.Jagose J