REEDY v POLICE [2019] NZHC 2435

REEDY v POLICE [2019] NZHC 2435 [26 September 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000317[2019] NZHC 2435BETWEEN JAIDE REEDYAppellantAND NEW ZEALAND POLICERespondentHearing: 23 September 2019Appearances: T Clee for the AppellantG J Fraser and M J Mortimer for the RespondentJudgment: 26 September 2019JUDGMENT OF HINTON JThis judgment was delivered by me on 26 September 2019 at 10.30 amRegistrar/Deputy RegistrarCounsel/Solicitors:Tudor Clee, Barrister, AucklandMeredith Connell, Auckland[1] Ms Reedy was convicted and sentenced on eight charges arising from twoseparate occasions. The first set occurred on 31 January 2019:(a) shoplifts (under $500);1 and(b) common assault.2[2] The second set occurred on 10 February 2019:(a) shoplifts (under $500) x 2;3(b) assault with a weapon x 2;4(c) intentional damage;5(d) possessing a knife in public place.6[3] Ms Reedy appeals the sentence of Judge Ronayne given on 22 May 2019 inthe Auckland District Court.7 The Judge sentenced Ms Reedy to two years andfive months' imprisonment.[4] The issue is over the starting point. The Judge adopted a starting point ofthree years. Mr Clee, for Ms Reedy, submits an appropriate starting point iseight months' imprisonment. Ms Fraser for the respondent accepts that the startingpoint adopted by the Judge was too high, but submits an appropriate starting point is18 to 24 months.1 Crimes Act 1961, s 223(d). Maximum penalty three months' imprisonment.2 Section 196. Maximum penalty one year's imprisonment.3 Section 223(d). Maximum penalty three months' imprisonment.4 Section 202C. Maximum penalty five years' imprisonment.5 Section 269(2)(a). Maximum penalty seven years' imprisonment.6 Summary Offences Act 1981, s 13A.7 New Zealand Police v Reedy [2019] NZDC 9624.Background[5] The first offending occurred on 31 January 2019. Ms Reedy stole a sandwichworth $6.50 from a bakery. She then assaulted a member of the public, who tried totake a picture of her, by hitting the complainant around the head with her handbag.[6] The second offending is more serious. It occurred on 10 February 2019.Around 10.15 am, Ms Reedy went into the Auckland City Mission Op Shop, took adress and handbag, valued at $21, and left without paying. She left her own handbagin the store.[7] Around 2.20 pm, she was sitting outside the same shop. The store supervisorrecognised her, came out and questioned her about the theft. Ms Reedy becameverbally aggressive and demanded the return of her handbag. The verbal altercationescalated and Ms Reedy pulled a meat cleaver from another handbag, presumably thehandbag she stole, and again demanded the return of the bag she left behind. Thesupervisor, fearing assault, went back inside the store. Ms Reedy followed him. Therewas another employee inside the store. Ms Reedy continued to ask for her handbagand money she said it contained, brandishing the cleaver and advancing slowly on thecomplainants. The two employees were understandably frightened and kept a safedistance. Ms Reedy then smashed a chain securing a donation box and left the storecarrying it. It contained $36.40. She was arrested a short time later.District Court decision[8] Judge Ronayne took a starting point of three years on the assault with a weaponcharges, writing that it was a very intimidating event and was tantamount toaggravated robbery. He said he had to take into account s 8(d) of the Sentencing Act2002, which requires the Court to impose a sentence near to the maximum if theoffending is near to the most serious.[9] The Judge then applied an uplift of two months for the 31 January 2019offending, and another three months for Ms Reedy's lengthy history of petty crime.Ms Reedy wrote a letter of remorse. The Judge noted this, and that she had hadchallenges in her life. He gave a discount of two months for remorse. He then gave adiscount of 10 months (or approximately 25 per cent) for a guilty plea made at the firstopportunity. This came to two years and five months. The Judge imposed variousconcurrent sentences for all of the other charges, and these are not challenged onappeal.Approach on appeal[10] Under the Criminal Procedure Act 2011, the Court must allow the appeal ifsatisfied that, for any reason, there is an error in the sentence imposed on conviction,and that a different sentence should be imposed.8[11] In deciding whether to impose a different sentence, the Court does not simplysubstitute its own view for that of the original sentencing Judge.9 Rather, it must beshown that the sentence is manifestly excessive or wrong in principle.10 The focus ison the end result rather than the process by which the sentence was reached.11Discussion – starting point[12] The sole issue in this appeal is the starting point, although if the starting pointcomes down, the guilty plea discount of 10 months will be proportionally reduced.12[13] Both counsel submit that the starting point of three years is too high. Bothcounsel accept the starting point should be set by reference to the tariff caseNuku v R.13[14] Nuku v R does not, on its face, cover sentences for assault with a weapon. Nukudoes, however, apply to injuring with intent to injure,14 which has the same five-yearstarting point as assault with a weapon. Courts have applied Nuku to the latter charge8 Criminal Procedure Act 2011, s 250(2).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].10 Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].11 Tutakangahau v R, at [36].12 The maximum discount being 25 per cent per Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.13 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.14 Crimes Act 1961, s 189(2).on a number of occasions.15 I accept that Nuku applies, although the type of offencesit traditionally covers all involve actual injury, so the guidelines should be appliedcautiously in a case such as this where there was only threatened injury. I note Nukuhas been applied in circumstances of threatened injury.16[15] The tariff bands in Nuku are as follows:17(a) Band one: where there are few aggravating features, the level ofviolence is relatively low and the sentencing judge considers theoffender's culpability to be at a level that might have been betterreflected in a less serious charge, a sentence of less than imprisonmentcan be appropriate.(b) Band two: a starting point of up to three years' imprisonment will beappropriate where three or fewer of the Taueki aggravating factors arepresent.(c) Band three: a starting point of two years up to the statutory maximum(either five or seven years, depending on the offence) will apply wherethree or more of the Taueki aggravating factors are present and thecombination of those features is particularly serious. The presence ofa high level of or prolonged violence is an aggravating factor of suchgravity that it will generally require a starting point within band three,even if there are few other aggravating features.[16] Judge Ronayne did not refer to Nuku, but from his starting point of three yearsand his reference to the need to impose a sentence near to the maximum for offendingnear to the most serious, it can be inferred he was placing the offending at the very topof band 2, or in band 3.[17] Ms Fraser submits the present offending falls within band 2. She submits thereare two aggravating factors here: being that the offence was in facilitation of anothercrime and the type of weapon used.18 (The respondent also suggested that vigilanteaction could be a third aggravating factor, but I do not see that as applicable.)[18] The appellant places this offending in bands 1 or 2. Mr Clee queries thoughwhether either of the aggravating features applies. He submits "use of a weapon" is15 See R v Wereta [2017] NZHC 1762 at [14]; Hurinui v R [2014] NZCA 290 at [26]–[27]; andEdmondson v Police [2015] NZHC 3184 at [10].16 Hintin v Police [2015] NZHC 560 at [20]–[21].17 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].18 R v Taueki [2005] 3 NZLR 372 (CA) at [31](d) and (f).inherent in the offence of "assault with a weapon", so counting it as an aggravatingfactor would be double-counting. That would be true, but Ms Fraser clarifies that it isthe type of weapon that is aggravating, referring to Taueki.19 I agree that the use of ameat cleaver, which has the potential to cause serious harm, is relevant to the severityof the offence. Also, it is not double-counting to treat facilitation of a crime as anaggravating factor, as the sentence imposed for the other contemporaneous offendingwas concurrent. I accept that the two aggravating factors referred to by Ms Fraser areproperly taken into account.[19] The appellant refers me to the 2008 decision in Leatherby v New ZealandPolice as a comparable case.20 In that case, Mr Leatherby, who was heavilyintoxicated, walked up to the victim in a room with other people, and struck him witha butcher's knife, causing a small wound above the victim's eye. Mr Leatherbyclaimed he had been harassed by the victim all day. The starting point was reduced tonine months on appeal. I note that this case predates Nuku, although neither counselmade anything of this.[20] I consider the offending in this case more serious than in Leatherby, given theelement of provocation in that case, as well as that this offending occurred in thecontext of committing other offending.[21] The appellant also relies on Gollan v R.21 In that case, Mr Gollan threatenedtwo finance company representatives with a baseball bat at the door of his home. Theyhad come to repossess a car which they knew was a contentious issue. He swung thebat at them but did not make contact because they took evasive action. He called tohis wife to bring the 12-guage and said he would blow them off the property. TheCourt of Appeal held a starting point of 12 months was too high, and reduced it toeight months, although they seemed to take into account personal mitigating featureswhen doing so.22 Ms Fraser submits the present offending is more serious because theoffending occurred in commercial premises where confrontation with the public wasmore likely, (as opposed to the defendant's home) and because of the other offending.19 R v Taueki [2005] 3 NZLR 372 (CA) at [31](c).20 Leatherby v New Zealand Police HC Palmerston North CRI-2008-454-45, 10 September 2008.21 Gollan v R [2013] NZCA 29.22 At [74]–[78].[22] I agree, for the reasons submitted by Ms Fraser, that the offending here is moreserious than in Gollan, but there is not much in it. In Gollan there was a high chanceof injury similar to here, perhaps more so as Mr Gollan appeared to be trying to hit thevictims.[23] I note that the Court in Gollan seemed to view the sentence they imposed aspeculiar to the specific circumstances of that case. They wrote that the outcome of thesentence appeal should not be seen as having precedent value.23 I therefore considerit not of overly-much assistance and more of an outlier.[24] Another case referred to by the appellant is R v Wereta.24 The offending tookplace in prison, and involved the defendant hitting the victim with a shank, causingmoderately serious injuries. The aggravating features were premeditation, use of a(dangerous) weapon, and attacking the head. Woolford J treated the fact the attackoccurred in the context of a fight, where the victim was also armed (albeit with abroom), as a mitigating feature. He came to a starting point of 13 months. In hisanalysis, Woolford J also noted several other relevant cases, and I gratefully borrowhis descriptions:25Edmondson v Police26—The defendant pulled the victim's hair and elbowedher in the right eye. He took a knife from the kitchen and warned the victimthat if she called the Police he would put a knife to her throat faster than theycould get there. When she attempted to call the Police, he took the telephonefrom her and bent her fingers back. He took a large carving fork and used it tostab her in the lip. On appeal, Peters J reduced the starting point on the assaultwith a weapon charge to 14 months imprisonment.Mohib v Police27—The appellant slapped and punched the victim multipletimes in the head. He later left the room and returned with a hammer. He struckthe victim with the head of the hammer, hitting her multiple times in the armsand legs, leaving her with bruises to her arms, thighs, face and head. Onappeal, the High Court upheld a starting point of 15 months imprisonment forthe lead charge of assault with a weapon.23 At [78].24 R v Wereta [2017] NZHC 1762.25 At [18].26 Edmondson v Police [2015] NZHC 3184.27 Mohib v Police [2017] NZHC 123.Whatuira v Police28—The appellant punched his elderly father in the face,struck him on the elbow with a hammer, and threw a mountain bike at him,hitting him on the arm. Dobson J allowed the appeal and substituted a term of17 months imprisonment for two counts of assault with a weapon and onecharge of common assault. He did not explicitly state a starting point, butappeared to hold a starting point less than the 12–13 month starting pointadopted by the Court of Appeal in Stone v R was appropriate.29[25] As with Leatherby and Gollan, it is difficult to compare these cases with thisone. Most of them involved actual injury, as opposed to mere threats as here. Thismust be significant. But on the other hand, as Ms Fraser submits, in this case, therewas material potential danger to the public and to the victims because of the locationof the offending and the dangerous nature of the weapon. Also, this case involvedcommission of another offence, albeit not a major one. I also agree with the Judgethat Ms Reedy's behaviour was very intimidating.[26] Given the factors I have identified, I consider this case is at the lower end ofband 2 in Nuku. I consider it is also at the lower end of the cases Woolford J referredto in Wereta, including Wereta itself. Having reviewed all of the cases referred to mefor a fair comparison, I consider an appropriate starting point is 13 months'imprisonment.[27] As I have said, neither the appellant nor the respondent raises a serious issuewith Judge Ronayne's discrete adjustments. The respondent does submit in passingthat the discount of two months for remorse and the uplift of only three months for theJanuary offending are both generous. I agree so far as the January offending isconcerned, as that could have easily attracted a cumulative sentence. But I considerthe discount for remorse was justified, after reading the pre-sentence report andMs Reedy's letter. It is sad to read Ms Reedy's comments about her situation and herregret at having bitten the very hand that feeds her. She says she is going to work withProbation and others to become a better person. I hope she does this time and that shesucceeds. A lot of her crime is very petty, but if she continues with crime like thepresent, she will basically live her life in prison. I do not consider that needs to be thecase.28 Whatuira v Police [2012] NZHC 1995.29 Stone v R [2011] NZCA 558.[28] I do not propose to alter any of the adjustments, with the exception of the guiltyplea discount, which must be adjusted to account for the lower starting point. So, froma starting point of 13 months, I add two months for the 31 January 2019 charges,another three months for Ms Reedy's previous convictions, and take off two monthsfor her remorse. This brings me to one year and four months' imprisonment. I thendiscount by four months for the guilty plea.[29] This brings me to a sentence of one year's imprisonment. This is materiallydifferent to the sentence of two years and five months imposed by Judge Ronayne,such that the original sentence was manifestly excessive.Conclusion[30] I allow the appeal and on the two charges of assault with a weapon, I substitutea sentence of one year's imprisonment.[31] Neither counsel disputes the correctness of the sentences on the other charges.[32] I thank counsel for their very helpful written and oral submissions.-------------------------------------------------------------Hinton J