NUKU v NEW ZEALAND POLICE [2020] NZHC 1767

NUKU v NEW ZEALAND POLICE [2020] NZHC 1767 [22 July 2020]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2020-443-13CRI-2020-443-14[2020] NZHC 1767JASMINE NUKUvNEW ZEALAND POLICEANDDEPARTMENT OF CORRECTIONSHearing: 21 July 2020 via AVLAppearances: K Pascoe for AppellantG N Milne for RespondentJudgment: 22 July 2020JUDGMENT OF CLARK JIntroduction[1] On 25 May 2020 Ms Nuku was sentenced1 to four months' communitydetention on one charge of assaulting a constable,2 and to 80 hours' community workon one charge each of breaching supervision3 and breach of community work.4[2] Ms Nuku appeals against sentence. She contends the sentence is manifestlyexcessive in that the Judge:1 New Zealand Police v Nuku [2020] NZDC 12574 [Sentence decision].2 Crimes Act 1961, s 192(2).3 Sentencing Act 2002, s 70(a).4 Section 71(1)(a).(a) imposed a sentence combination that was excessive in length andunreasonable having regard to all the circumstance;(b) failed to have regard to the deterrent and denunciation aspects inherentin a sentence of community detention; and(c) erred in imposing disproportionate community detention hours inexcess of the maximum per week.The offendingAssault charge[3] The charge of assaulting a police officer arose out of an incident in the earlyhours of 3 February 2019. Ms Nuku was at a residential address in New Plymouth.She was intoxicated, and yelling at and biting her friends who were trying to help her.Eventually Ms Nuku was placed under arrest, handcuffed and walked to the patrol car.A police officer aided Ms Nuku into the rear seat. As she was passing the seatbelt toanother officer to secure it, Ms Nuku swivelled in her seat, lifted her leg and kickedthe officer once in the face. The officer suffered swelling and soreness to the bridgeof her nose but did not require medical attention.[4] On 17 September 2019 in the New Plymouth District Court, Judge Hikakasentenced Ms Nuku to six months' supervision and 60 hours' community work on theassault charge.Non-compliance and breaches[5] Between 18 September 2019 when the rules and requirements of her sentenceof supervision were explained to her, and 24 January 2020 when the probation officermade an application to cancel and substitute the sentence of supervision, Ms Nuku hadfailed to report on 12 occasions.[6] In relation to the 60 hours community work Ms Nuku failed to report within72 hours of sentencing. The requirements were explained to Ms Nuku on24 September 2019 and she acknowledged her understanding of her obligations andthe consequences of non-compliance.[7] To accommodate her childcare requirements, Ms Nuku was given theopportunity to complete her hours at an agency placement. However, after failing toreport on a number of occasions in October and November 2019, the placement wascancelled and Ms Nuku was directed to report to New Plymouth community workcentre on Wednesday 20 November at 8 am and every week thereafter unless otherwiseadvised.[8] Ms Nuku failed to report on 20 November 2019. She reported in on only twooccasions after her sentence commencement date. Numerous warnings were issuedincluding a final warning that was hand delivered to Ms Nuku's address. Theprobation officer reports that attempts were made to engage Ms Nuku and home visitswere attempted but no one was present.[9] Ms Nuku advised the writer of the PAC (Provision of Advice to Courts) reportthat the main reason for her non-compliance was childcare commitments but wasunable to explain why she did not communicate the childcare barriers to CommunityProbation. The report writer assessed Ms Nuku's "offending related factors" as"lifestyle and poor attitude towards community based-sentences and Court orders".Decision under appeal[10] The application to cancel and substitute the sentence of supervision beforeJudge Greig on 25 May 2020 was made on the grounds Ms Nuku responded poorly tothe sentence of supervision having failed to report on 12 occasions, and that not havingcomplied with the conditions of sentence she was assessed as unsuitable for such asentence.[11] Judge Greig's notes of sentence are brief. He began by observing theseriousness of the charge of assaulting a police officer in relation to which Ms Nukureceived a "reasonably light sentence" but that she had not met any of the conditionsof supervision and had "not done much" of the community work.5 The Judgecommented that attending a probation interview drunk or intoxicated tended to reflectMs Nuku's attitude to the process so "things are going to get more serious".[12] The essence of the decision is in the following paragraph:[3] The sentence is four months' community detention and 80 hours'community work and I am marking the record that if you do not perform thiscommunity work you are probably going to go to prison, it is a final warning.You are going to do this sentence. You have made it worse to date, it is goingto keep getting worse if you do not do it, so just get on with it please. That istherefore your sentence.[13] An appeal against sentence is an appeal against a discretion. An appeal againstsentence must be allowed if the Court is satisfied that, for any reason, there is an errorin the sentence imposed and a different sentence should be imposed.6 The focus is onthe final sentence and whether that was in the available range, rather than the exactprocess by which it was reached.7[14] The Court of Appeal has explained that whether a sentence is "manifestlyexcessive" continues to be an important guide to finding an error and that:8The discretion to vary [a] sentence [on appeal] is not unfettered; this Courtdoes not embark upon the sentencing afresh nor substitute its own opinion forthat of the original sentencer. There must be an error vitiating the exercise ofthe original sentencing discretion. In short, this Court must proceed on an"error principle".SubmissionsMs Nuku[15] Ms Nuku's position is that the Judge:(a) imposed a sentence combination that was excessive in length andunreasonable having regard to all the circumstances;5 Sentence decision above, n 1 at [1].6 Criminal Procedure Act 2011, s 250(2); Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR482.7 Ripia v R [2011] NZCA 101 at [15].8 Tutakangahau v R, above n 2, at [29], citing R v Shipton [2007] 2 NZLR 218 (CA) at [138].(b) failed to have regard to the deterrent and denunciation aspects inherentin a sentence of community detention; and(c) erred in imposing disproportionate community detention hours whenregard was had to the charge of assault on Police and review ofsentence.[16] On behalf of Ms Nuku, Ms Pascoe submitted that the original sentence ofsix months' supervision and 60 hours' community work was well within thesentencing range for the Crimes Act charge. When Ms Nuku did not comply with thatsentence the Judge was required to consider how that sentence should be reflected ina sentence of community detention with an appropriate adjustment to recognise thebreaches of community work and supervision.[17] Counsel submits the Judge wrongly focused on punishing Ms Nuku for failingto comply with her sentence.[18] The consequence, it is said, is that the Judge imposed a sentence for thebreaches in excess of the community work period initially imposed in relation to theCrimes Act charge, making it manifestly excessive.Respondent[19] Counsel for the respondent submits the sentence of four months' communitydetention for the assault charge was clearly within the available range. The offendingwas similar to that in Freer v New Zealand Police where the Court upheld as justifieda sentence of four months' community detention and 18 months' intensivesupervision.9[20] Ms Milne submitted a cumulative sentence with a corresponding punitiveelement was clearly justified for the distinct offences of breaches of supervision andbreach of community work.9 Freer v New Zealand Police [2019] NZHC 337. The assault of the police officer was the leadcharge, but there were also charges of intentional damage, breaching District Court bail,shoplifting and resisting arrest.Discussion[21] Ms Pascoe's primary concern is that the consequence of the District Court'sreview of sentence was that the sentence of four months' community detentioninvolved an elevation in the hierarchy of sentences. In other words, where the sentenceof community work was at "tier 4" of the hierarchy of sentences, Ms Nuku has beenplaced at "tier 3" with the imposition of the sentence of community detention.[22] There is no doubt that Ms Nuku's sentence of community detention is morerestrictive than the sentence of community work and supervision to which she wasoriginally subject. But I do not consider this makes the sentence manifestly excessive.Ms Pascoe submitted there was no argument from counsel at the time of sentencingthat they were "in the realms of community detention". Ms Pascoe said the concernat that time was to avoid a sentence that would set Ms Nuku up for failure or acontinuation of her non-compliance. In that regard I note from the court file thatMs Nuku acknowledged to the PAC report writer that while she had been non-compliant in relation to her previous sentences, she identified no barriers tosuccessfully completing a sentence of community detention.[23] An updated memorandum for the Court providing additional information forMs Nuku's sentence on 7 April 2020 records Ms Nuku's signed consent to compliancewith conditions of an electronic monitoring sentence, and standard and specialconditions and proposed curfews, should a sentence of community detention or homedetention be imposed.[24] There being no element of surprise as to the imposition of this sentence I turnto counsel's concern that the Judge wrongly focused on punishing Ms Nuku for failingto comply with the original sentence.[25] This case has analogies with Smith v New Zealand Police, a case involvingbreaches of community work and supervision.10 Lang J held:Mr Smith has shown extremely poor judgment in failing to comply with thesentences of supervision and community work. His actions go beyond being10 Smith v New Zealand Police [2014] NZHC 2896 at [13].negligent, and must be regarded as deliberate. As the Judge observed, anysentence must necessarily have a significant deterrent factor.[26] Ms Nuku has not shown the District Court Judge erred in his approach tosentencing or in the sentence imposed and that, therefore, the intervention of this Courtis justified.[27] The sentence of six months' supervision was substituted with a sentence ofcommunity detention but for a lesser period. The sentence of 60 hours communitywork was substituted with a sentence of 80 hours community work. On a charge ofassaulting a police officer a sentence of four months' community detention combinedwith a sentence of community work is not excessive. The additional 20 hours imposedcontains a punitive element for failing to comply with the conditions of sentence but,as Lang J held in Smith v New Zealand Police a sentence for such failures to complymust necessarily have a significant deterrent factor.Result[28] The appellant has not shown the sentence to be manifestly excessive. It waswithin the available range and consistent with the Sentencing Act's principles ofdenunciation and deterrence.11[29] The appeal is dismissed._____________________________Karen Clark JSolicitors:Nicholsons Lawyers, New Plymouth, for Ms NukuCrown Solicitor, New Plymouth for Respondent11 Sentencing Act 2002, s 7.