PADGETT v POLICE [2017] NZHC 2818

PADGETT v POLICE [2017] NZHC 2818 [16 November 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2017-409-133CRI-2017-409-134[2017] NZHC 2818BETWEEN JOHN PADGETTAppellantAND NEW ZEALAND POLICERespondentHearing: 16 November 2017Appearances: J D Lucas for the AppellantD Matthews for the DefendantJudgment: 16 November 2017JUDGMENT OF MANDER JIntroduction[1] Mr Padgett was sentenced to an effective term of two years and two weeksimprisonment on charges of injuring with intent to injure, unlawful possession ofammunition, possession of a cannabis pipe and disorderly behaviour likely to causeviolence.1 He appeals that sentence on the grounds it is manifestly excessive.The offending[2] In December 2016, Mr Padgett was found intoxicated in central Timaru. Hewas given a ride to his accommodation at a backpackers by Police. On his arrival, themanager of the backpackers asked him to leave due to his intoxication and his failure1 Police v Padgett [2017] NZDC 22409.to pay for his stay. Upon leaving he lunged at the owner, pushing him in the chest andverbally abusing him. After being separated by Police, Mr Padgett continued tothreaten harm to, and yell obscenities at, the owner. He was charged with disorderlybehaviour likely to cause violence. A cannabis pipe was also found in his pocket andhe was charged accordingly.[3] In February 2017, Mr Padgett was at a friend's house drinking alcohol. Hisfriend was apparently asleep, lying on the couch, when Mr Padgett produced a flick-knife and slashed the top of his friend's hand, cutting him once. The victim washospitalised and required stitches.[4] Mr Padgett was arrested for the knife incident in April. Upon being searchedPolice found a .308 round of ammunition in his bag. In relation to the knife incidenthe was initially charged with wounding with intent to injure, but Police agreed to lowerthe charge to injuring with intent to injure.Sentencing[5] On 16 August, Judge Couch gave a sentence indication on the injuring andammunition charges. Taking the injuring charge as the lead charge, the Judge referredto the Court of Appeal guidance in R v Nuku and R v Taueki.2 He identified theaggravating features as use of a weapon, the vulnerability of the victim, somepremeditation "in the sense that it was not provoked or prompted by action of thevictim or by any other unexpected event", extreme violence, and the fact the attackoccurred in the victim's home. Overall his Honour considered the offending fell at thetop of band two of Nuku.[6] From a starting point of two years, four months the Judge indicated he wouldadd a further two months for the ammunition charge. No uplift would be applied inrespect of Mr Padgett's criminal history, which the Judge said was "unrelated andhistoric". The Judge indicated the full 25 per cent guilty plea discount would apply,and that there may be further reductions for remorse and/or payment of reparation foremotional harm, and constructive involvement in restorative justice. The Judge2 R v Taueki [2005] 3 NZLR 372 (CA); Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.advised that he had insufficient information available to assess those factors but thatif guilty pleas were entered they would receive further consideration.[7] Overall this led to an indication of one year, 10½ months imprisonment, withthe Judge remarking he "would consider home detention an appropriate alternative".Finally, the Judge reiterated that the indication was for the two charges only, and didnot take into account the cannabis pipe and disorderly behaviour charges.[8] At sentencing on 3 October, the Judge adopted the sentence indication and thenwent on to consider the other two charges. He said "taking into account your historyof similar offending on the one hand and your guilty pleas on the other hand, I applyan uplift of two months imprisonment", resulting in an overall sentence of two yearsand two weeks. The Judge noted that a positive factor from Mr Padgett's point of viewwas that this will mean he is eligible for parole after one third of the sentence ratherthan half, as would be the case if it was below two years.Jurisdiction and approach to appeal[9] Mr Padgett appeals as of right.3 This Court may only allow the appeal ifsatisfied there is an error in the sentence imposed and that an alternative sentenceshould be imposed.4 If the sentence under appeal can be properly justified havingregard to relevant sentencing principles, this Court cannot substitute its own views forthose of the sentencing Judge. The sentence must be either manifestly excessive orinappropriate to interfere with the sentencing Judge's discretion.[10] It is not enough that the Judge made an error in his or her reasoning: the focusis on the sentence imposed rather than the process by which the sentence was reached.5That has some application in the circumstances of this case.3 Criminal Procedure Act 2011, s 244.4 Criminal Procedure Act, s 250.5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].Submissions[11] No issue has been taken with the characterisation of the lead offence as fallingat the upper end of category two of Nuku, nor of the starting point of 28 months onthat charge.[12] Mr Lucas for Mr Padgett submitted that the two-month uplift for the Decemberoffending made the end sentence manifestly excessive. The indicated sentence of oneyear, ten months was appropriate, he says, for the totality of the offending. Hedescribes the utensils and disorderly behaviour offending as "nuisance offendingresulting from alcohol abuse" which on their own would not have attracted a prisonsentence. He further submitted it should not have attracted an uplift in the sentence forthe violence offending. Mr Lucas noted that the Judge's reference to Mr Padgett'scriminal history in fixing the uplift, and says this is "odd" because at the sentencingindication hearing other previous offending of a comparable vintage was deemed"unrelated and historic".[13] Mr Lucas also submitted the Judge erred by not giving Mr Padgett a discountfor remorse. He referred to the pre-sentence report, which recorded Mr Padgett'ssurprise that he could have committed such a serious crime, and expressed shame andremorse, and exhibited insight into the effects of his alcohol abuse. The appellant alsoexpressed a desire to attend restorative justice and to apologise to his victims but thisdid not occur, through no fault of his own. He even went so far as turning up at arestorative justice meeting that had been organised but the victims did not attend.[14] Mr Lucas submitted even though at the sentence indication hearing the Judgereserved the possibility of further discounts for remorse and/or restorative justice, hedid not refer to those factors at the subsequent sentencing. Mr Lucas referred to Poi vR, where the Court of Appeal observed that a five per cent credit could have beenappropriate where the pre-sentence report showed signs of remorse and a desire toattend restorative justice.6 Similarly, he referred to Watene v R, where the Court ofAppeal allowed a discount for remorse expressed in a pre-sentence report.76 Poi v R [2015] NZCA 300.7 Watene v R [2014] NZCA 381.Analysis[15] The difficulty with Mr Lucas's submissions is that the sentence he isadvocating for is not too far apart from that which the Judge imposed. What he isasking for is the removal of the two month uplift and effectively a further 5 per centreduction for remorse. This would transmute a sentence of two years and two weeksimprisonment to one of 21 months and two weeks imprisonment. The pre-sentencereport discloses that Mr Padgett does not want home detention, and so nothing turnson that aspect of the appeal. Although not a legitimate reason to impose a longersentence, as Judge Couch pointed out, a slightly longer sentence could actually workout better for Mr Padgett in terms of time served.8 The reality is that this is not thecase in Mr Padgett's circumstances.[16] I do not think the two-month uplift for the December offending led to amanifestly excessive sentence. The offending was unrelated to the other incident intime and nature. The Judge was entitled to impose some cumulative penalty or uplift,and the two month uplift could be describe as nominal. While the offending on itsown would not likely have attracted a prison sentence, in the present situation acommunity-based sentence was not available because the offender was already subjectto a prison sentence. In my view, the Court was entitled to impose a small uplift to theextant prison sentence in the way Judge Couch did. The Judge made it clear whenproviding his sentence indication that he anticipated a further uplift may be requiredto reflect the other two charges. He certainly reserved to himself that possibility.[17] I accept there appears some inconsistency in the Judge's categorisation of MrPadgett's previous convictions, but I do not consider that gives rise to any error in thecumulative sentence imposed. The Judge did not apply a discrete uplift for previousconvictions, but rather, in deciding to impose the additional two months, was cognisantof the fact Mr Padgett was not a first-time offender and that he has offended in the pastwhile affected by alcohol on a number of previous occasions.[18] Discounts for remorse and willingness to attend restorative justice are at thediscretion of the sentencing Judge. Mr Padgett has clearly shown some remorse, not8 Parole Act 2002, s 20.least through the steps he took to attend restorative justice. The sentencing Judge didnot refer to these factors in his sentencing notes despite indicating that they wouldreceive further consideration. Discount for remorse is at the discretion of thesentencing Judge. Based on the authorities referred to by Mr Lucas, I accept it wasopen to the sentencing Judge to apply a small discount of around 5 per cent,particularly having regard to Mr Padgett's willingness to engage in a restorative justiceprocess. However, any adjustment at this stage would result in little more than amonth's change to the sentence. The Judge's omission to make such a modestalteration did not, in my view, render the final sentence imposed manifestly excessive.[19] While Mr Padgett has not challenged the starting point adopted in relation tothe lead charge, this Court on appeal must consider whether the sentence as a wholeappropriately reflects the seriousness of the offending. Given the number ofaggravating features, the placement of the offending at the upper end of band two inNuku was appropriate, and was rightly not contested to be otherwise.9 That bandallows for a starting point of up to three years.10[20] Assessing the effective sentence as a whole against the totality of the offending,I do not consider the two years and two week sentence of imprisonment to be outsidethe range available to the sentencing Court.Conclusion[21] Mr Padgett has not demonstrated that the sentence was manifestly unjust andthe appeal should be dismissed.Solicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co, Christchurch9 In Rewa v Police [2015] NZHC 2459 and Elizadale v Police [2015] NZHC 959 for comparableoffending involving the infliction of a laceration as a result of single aggressive act a starting pointof 25 months was applied notwithstanding the absence of a weapon or a vulnerable victim.10 Nuku v R, above n 2, at [38].