PIHEMA v NEW ZEALAND POLICE [2017] NZHC 1672

PIHEMA v NEW ZEALAND POLICE [2017] NZHC 1672 [18 July 2017]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYCRI-2017-443-11[2017] NZHC 1672BETWEEN JAMIE WILLIAM PIHEMAAppellantAND NEW ZEALAND POLICERespondentHearing: 18 July 2017Counsel: J M Woodcock for AppellantG N Milne for RespondentJudgment: 18 July 2017Reasons: 20 July 2017REASONS FOR JUDGMENT OF THOMAS JIntroduction[1] Jamie Pihema was sentenced to 10 and a half months' imprisonment at theDistrict Court at New Plymouth on 27 April 2017 on a charge of escaping custody.[2] On 18 July 2017, I allowed Mr Pihema's appeal against sentence.1 The Crown conceded the end sentence was not within range. In addition, the original sentencing indication on which the Judge relied contained a mathematical error and an error in methodology. The sentence of 10 and a half months' imprisonment was quashed and replaced by a sentence of six months' imprisonment. I now give myreasons.1 Pihema v Police [2017] NZHC 1650.Facts[3] On 5 March 2017, Mr Pihema drove a Subaru car to a Z petrol station in New Plymouth. A passenger filled the tank. Mr Pihema drove away once the passenger had re-entered the car. The petrol was not paid for. The car was stopped by a marked Police patrol car on State Highway three. Mr Pihema provided false details as to his identity. The Police officer determined his true identity and arrested him on unrelated matters. Mr Pihema was allowed his request to retrieve some belongings from the Subaru. Mr Pihema drove away, at speeds in excess of 150 km per hour. The Police gave chase for a short distance, but abandoned the pursuit.[4] Mr Pihema was found in the Subaru an hour later in a suburban driveway. Police found cannabis plants in a plastic bag in the boot of the car.[5] Mr Pihema also breached his prison release conditions in December 2016 and February 2017 by failing to report on one occasion and failing to provide details of his address to his Probation Officer on another occasion.[6] Mr Pihema pleaded guilty to eight charges: escaping from the lawful custody of the Police, dangerous driving, theft of petrol, possession of cannabis, failing to stop for the Police, providing false details to the Police and two charges of breach of release conditions.[7] Since 2003, Mr Pihema has had a consistent history of property, traffic and low-level violence offences.The District Court decision[8] The sentencing Judge imposed the sentence when Mr Pihema pleaded guilty following a sentence indication delivered by another District Court Judge. The indication was not accepted by Mr Pihema, yet the sentencing Judge did not attend to a fresh consideration of the sentence, clearly under the misapprehension the indication had been accepted. The sentencing notes were confined to one page, recording the 10 and a half month imprisonment sentence for escaping custody,along with a conviction and disqualification from driving for driving dangerously, and conviction and discharge on the six other charges.The sentence indication[9] The sentencing indication provided more detail and was explicitly followed by the sentencing Judge. The sentence indication outlined the offending, noted Mr Pihema's considerable history of offending, and suggested the sentence needed todeter Mr Pihema, recompense the petrol station, encourage Mr Pihema to accept responsibility and protect the community from his offending.[10] The Judge then set a starting point of four months' imprisonment for escaping Police custody, with two months concurrent for dangerous driving, two for theft, and one for possession of cannabis. Despite the Probation Service suggesting a conviction and discharge on the two charges of breaching release conditions, the Judge said she would impose one month cumulative in respect of a six month deferred sentence imposed on 18 November 2016 on a previous breach of release conditions. For the breach of release conditions subject to the sentence indication, she would impose one months' imprisonment concurrent. The Judge suggested a conviction and discharge was appropriate for the failing to stop and for giving false details.[11] The Judge said that brought the sentence to 10 months. She offered a 25 per cent discount for a guilty plea, which brought the total to seven and a half months. She said she would then impose a three month uplift for prior offending. The end result was an indication of 10 and a half months' imprisonment. She said she would set reparation for the stolen petrol, and a six month disqualification from driving.Submissions[12] Counsel for Mr Pihema, Ms Woodcock, submitted the sentence was in error for four reasons:(a) the final sentence did not align with the discrete sentences imposed for each offence;(b) the Judge was not entitled to impose a sentence for the deferred sentence;(c) the Judge uplifted the sentence for prior offending after the guilty plea discount; and(d) the uplift was disproportionate in the circumstances of the case.[13] Ms Woodcock noted that, although the issue of whether a sentence is manifestly excessive is determined with regard to the overall sentence imposed, in this case there were material errors in the way the sentence was crafted. It was not clear if the theft or cannabis charges were concurrent or cumulative, but had been accumulated in the final sentence indicated. She submitted that, although a cumulative sentence was justified, the sentence of two months' imprisonment for theft of petrol valued at $71 was too high.[14] Ms Woodcock further submitted that the Probation Service had not invoked s 111 of the Sentencing Act 2002, and therefore the Judge could not impose a sentence for the deferred sentence requiring Mr Pihema to come up for sentence if called upon.[15] Ms Woodcock acknowledged an uplift for prior offending can be warranted, particularly where that offending is of a similar kind. She submitted Mr Pihema had no prior convictions for escaping custody, nor for dangerous driving. She suggested no uplift was warranted, and even if one were, the uplift applied was disproportionate.[16] In conclusion, Ms Woodcock suggested a sentence end point of six months'imprisonment was at the top of the range in these circumstances.[17] Counsel for the respondent, Ms Milne, agreed the end sentence was outside the available range, and suggested instead a sentence of eight months' imprisonmentwas appropriate. While she provided a series of authorities to support her submission that a starting point of five months' was appropriate on the charge ofescaping from custody, those cases involved more serious associated offending, and the escapes from custody were more serious – including escaping from a courthouse, for instance.[18] Ms Milne submitted an uplift of two months was appropriate, noting Mr Pihema's previous convictions include 21 dishonesty convictions, one forresisting Police, and seven for breaching release conditions.Analysis[19] An appeal court must allow an appeal against sentence if satisfied for any reason there has been an error in the sentence imposed and a different sentence should be imposed.2[20] The sentencing Judge effectively adopted the sentence indication. The first issue is that the mathematical calculation for the total starting point was incorrect. The correct total was eight months' imprisonment, not 10 months' imprisonment. It is apparent that the indicated two months' concurrent for the dangerous drivingcharge was incorrectly treated as a cumulative sentence.[21] Secondly, s 111 of the Sentencing Act 2002 contains an exhaustive list of those who may make an application to the Court for calling up an offender who offends while on a deferred sentence. A judge is not one of them. I recognise that the sentences for breaches of release conditions could instead be made cumulative to the base sentence, so this is essentially a moot point.[22] Thirdly, the Judge deducted the 25 per cent discount for the guilty plea priorto imposing an uplift of three months' in respect of Mr Pihema's criminal history.The uplift should have been imposed before deduction of the discount for the guilty plea.[23] Fourthly, an uplift of three months in light of Mr Pihema's criminal history is excessive given it was imposed on a starting point of eight months' imprisonment.2 Criminal Procedure Act 2011, s 250(2).This represents an uplift of over 37 per cent. While the number, seriousness, date, relevance and nature of previous convictions of an offender are aggravating factors,3care must be taken not to punish Mr Pihema twice given he has already served sentences for prior offending. Any uplift must also be proportionate.[24] In these circumstances I consider the sentencing afresh. The offending on 5 March 2017 could have been addressed by taking a global starting point to reflect the circumstances where the offending escalated from the original theft of petrol. Alternatively, the escape from custody could be treated as the lead offence with the driving part and parcel and subject to a concurrent sentence, and the theft and possession of cannabis discrete offences. A judge is entitled to impose a sentence different from that recommended by the Community Probation Service in respect of breach of release conditions although, as noted, the Judge in this case had no jurisdiction to resentence on the deferred sentence for breach of release conditions. Whichever way it is approached, the appropriate starting point is seven months'imprisonment for the totality of the offending, uplifted by one month for prior offending and less a 25 per cent discount for the guilty pleas. This results in an endsentence of six months' imprisonment.[25] It is for those reasons that the sentence of 10 and a half months'imprisonment on the charge of escape from custody was quashed and replaced by a sentence of six months' imprisonment. There are no release conditions. None of theother sentences are disturbed.Thomas JSolicitors:Crown Solicitors' Office, New Plymouth3 Sentencing Act 2002, s 9(1)(j).