SORENSON v POLICE [2017] NZHC 2499

SORENSON v POLICE [2017] NZHC 2499 [12 October 2017]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-Ō-MARU ROHECRI-2017-476-000009[2017] NZHC 2499BETWEEN IAN GRANT SORENSONAppellantAND NEW ZEALAND POLICERespondentHearing: 10 October 2017Appearances: N Wham for the AppellantA R McRae for the CrownJudgment: 12 October 2017JUDGMENT OF NATION J[1] Mr Sorenson is aged 55. He lives next door to his elderly parents in Timaru. In February 2000, a final protection order was issued against Mr Sorenson for the protection of his elderly father and his sister.[2] On the evening of 8 June 2017, his sister was in the lounge with her parents at their home. Mr Sorenson had been drinking and was intoxicated. He went to the home. The summary of facts referred to there being a verbal argument between Mr Sorenson and his sister. She asked him to leave the property a number of times. While she was calling the Police, he attempted to grab her cell phone from her hand. He then punched her with a closed fist, hitting her in the mouth and nose. He started yelling at her, abused her and pulled her hair. The summary of facts said he was unable to comment due to his extreme level of intoxication.[3] All this occurred just two weeks after Mr Sorenson had been released fromprison for a sentence of 10 months' imprisonment for breaching a protection order, assaults on family members and assault on a Police officer, committed on 24 December 2016.[4] On 20 June 2017, Mr Sorenson pleaded guilty to two charges of breaching a protection order and one charge of assault. On the protection order breaches, he wassentenced to 12 months' imprisonment. On the assault, he was sentenced to threemonths' imprisonment, to be served concurrently. He appeals against bothconviction and sentence.Principles on appeal[5] Section 232 of the Criminal Procedure Act 2011 governs appeals against conviction. This Court, as first appeal Court, must only grant an appeal against conviction if it is satisfied that a miscarriage of justice has occurred for any reason. A miscarriage of justice means any error, irregularity or occurrence in or in relation to or affecting the trial that either has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.[6] Section 250 governs appeals against sentence. The Court must only allow an appeal against sentence if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.Appeal against conviction[7] Mr Sorenson appeals conviction on the basis that a miscarriage of justice occurred when he entered guilty pleas. He says such a miscarriage arises because, at the time he entered his guilty pleas, he did not understand the likely consequences of pleading guilty. It is also apparent from a letter he wrote to the Court that he denied deliberately assaulting his sister.[8] As Mr Sorenson's counsel properly acknowledged, an appeal againstconviction after guilty pleas will only be entertained in exceptional circumstances. The Court of Appeal has said that miscarriages of justice may have occurred:1(a) where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;(b) where on the admitted facts the appellant could not in law have been convicted of the offence charged;(c) where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law; and(d) where trial counsel errs in his or her advice to an accused as to the non- availability of certain defences, or outcomes.2[9] There is no affidavit evidence from Mr Sorenson on which it can be argued he did not understand what he was doing when he pleaded guilty to these charges. At the time Mr Sorenson was sentenced, the Court had letters he had written to his parents and to his sister. In these letters, he acknowledged he had been "a bit drunk".He refers to not leaving when he was asked to, acknowledged pushing his mother back down on a sofa when she went to get up and referred to his trying to push thecell phone down from his sister's mouth when she was calling the Police. In the letter, he claimed he accidentally touched her nose and lips.[10] The record indicates that he discussed with his counsel whether he would enter pleas of guilty or not guilty. In his letter to his parents, Mr Sorenson says his lawyer had advised him to plead not guilty but that he did not do that "as that would have taken four or five months to come to trial". The charge sheet shows that heappeared in Court on 9 June 2017 and was remanded in custody. On 20 June 2017, he initially entered pleas of not guilty but was then recalled later in the day and changed his pleas. In submissions for sentencing, his counsel noted that, in the letters he had written to the parents, there were disputed facts. His counsel said he intended to take instructions at sentencing as to whether he wanted a disputed facts hearing. In his submissions, he also said the summary of facts had been put to Mr Sorenson twice, that he entered a plea of guilty on the basis of those facts and raised1 R v Le Page [2005] 2 NZLR 845 (CA) at [17]-[19].2 R v Merrilees [2009] NZCA 59 (CA) at [34].no objection when they were read out in Court. There was no request for a disputed facts hearing.[11] Mr Sorenson has some 14 convictions for breach of protection orders since 1999 and numerous convictions for assault. He would have been well aware of what he had to have done to have been guilty of the charges he faced when he pleaded guilty. The letters he wrote show that he knew there had to be an intentional application of force for him to be guilty of an assault.[12] He had been remanded in custody before he pleaded guilty and clearly anticipated that he would be sentenced to imprisonment after he pleaded guilty. The sentence may have been longer than he hoped for. An under-estimation of the severity of sentence which might follow a guilty plea is not enough to result in a miscarriage of justice.3[13] I am satisfied that no miscarriage of justice occurred with his pleading guilty to the charges he faced.Appeal against sentence[14] The Judge adopted a starting point of 12 months' imprisonment for theoffending but also taking Mr Sorenson's previous history into account. She upliftedthat by three months to reflect the recent release date and the level of recidivism. Having read his letters, the Judge said Mr Sorenson had failed to see the seriousness of his wrongdoing so there could be no basis for an allowance for extreme remorse. She reduced the adjusted starting point of 15 months by three months to reflect hisguilty pleas, resulting in the end sentence of 12 months' imprisonment.[15] Through counsel, Mr Sorenson argues that an uplift of three months on a starting point sentence of 12 months was too high. He also argues the three month uplift was disproportionate, given previous convictions had been taken into account in adopting the 12 months starting point.3 Alhosan v Police HC Auckland CRI-2004-404-511, 10 August 2005.[16] I do not accept there was a double counting of Mr Sorenson's record ofprevious criminal offending. That record was taken into account, to some extent, in adopting the initial starting point of 12 months but the uplift on that of three months was primarily to reflect the recent release date and the fact this offending occurred while Mr Sorenson was still under the constraints of the original sentence.[17] In her sentencing notes, the Judge referred to the submissions Mr Sorenson'scounsel had presented. He had submitted that a 12 month period of imprisonment was an appropriate starting point for Mr Sorenson, given his earlier offending, noting that this was his tenth breach of a protection order for offending that had taken place over the preceding two years before sentence. After referring to that submission and the fact the previous offending had been taken into account in adopting that startingpoint, the Judge said "nevertheless, you were subject to sentence at the time and theoffending was so soon after your last release that there must be an uplift". I amsatisfied that is what the uplift of three months was for.[18] Although an uplift for previous offending must be kept in proportion with the starting point for the subject offending, the uplift for previous offending will be greater in the context of offending such as this where the previous offending relates to the same victims, took place in similar circumstances and there is a greater need for denunciation, deterrence and protection of the victims.[19] In a somewhat similar case, Williams v Police, Mallon J allowed an appeal, reducing a sentence of 12 months' imprisonment, on charges of breaching a protection order and male assaults female, to a sentence of eight months'imprisonment.4 In doing so, however, she said a starting point for the offending ofseven months' imprisonment was warranted but that an uplift of three months on thatwould have been appropriate for previous offending, including the fact that he was still subject to release conditions.[20] The Court of Appeal has emphasised that, on an appeal, whether a sentence imposed is manifestly excessive should focus on the end sentence.54 Williams v Police [2014] NZHC 3255.5 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.[21] It is significant that, in this case, Mr Sorenson had been released for only 14 days from a sentence of 10 months' imprisonment for the offending involving twoassaults in a family context, breaching of a protection order and an assault on Police. This was a repetition of similar offending, involving an actual assault, in a situation where both his elderly parents also remained vulnerable. The pre-sentence report assessed his abuse of alcohol and proclivity towards violence as factors contributing to his offending and his risk of reoffending and causing harm to third parties as being high.[22] In these circumstances, I have not been persuaded that the final sentence of one year' imprisonment was in error or manifestly excessive.[23] The appeal is dismissed.Solicitors:Michael Starling, Barrister, ChristchurchGresson Dorman & Co., Timaru.