GEBREMEDHIN v POLICE [2018] NZHC 2824

GEBREMEDHIN v POLICE [2018] NZHC 2824 [31 October 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-323[2018] NZHC 2824BETWEEN KALAYU GEBREMEDHINAppellantAND NEW ZEALAND POLICERespondentHearing: 30 October 2018Counsel: J Grainger for AppellantK R Muirhead for RespondentJudgment: 31 October 2018JUDGMENT OF WHATA JThis judgment was delivered by me on 31 October 2018 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Meredith Connell, AucklandIntroduction[1] Mr Gebremedhin pleaded guilty to failing to answer bail, possessing non-approved psychoactive drugs, possessing medicine without an excuse, possessing aclass C drug, wilful damage and disorderly behaviour. He was sentenced to ninemonths' imprisonment. He appeals this sentence as manifestly excessive. A table ofthe charges and corresponding sentences was helpfully produced by the Police and isreproduced as an appendix to this judgment.[2] At the conclusion of argument, I indicated that I would allow the appeal andsubstitute a sentence of three and half months. My reasons follow.Facts[3] The respondent provided a helpful summary of the facts. I largely adopt it.There are three periods of offending.The June offending[4] On 16 June 2017, the Police conducted a bail check at a property in Avondale.They smelled freshly burnt synthetic cannabis coming from the garage. They enteredthe garage. They saw synthetic cannabis in a point bag and two home-made bongs ona table next to Mr Gebremedhin.[5] Mr Gebremedhin then verbally abused Police and struggled with Police whilehe was being arrested. He told the two Police constables that "I remember your faces,when I'm out I'm going to get you outside of work". He continued to threaten Policewhile being processed.[6] Mr Gebremedhin subsequently entered guilty pleas to:(a) Possessing a non-approved psychoactive product; and(b) Speaking threateningly.The September offending[7] Police visited an address on an unrelated matter on 18 September 2017. Theyfound Mr Gebremedhin sleeping on a couch. He admitted ownership of two snap-lockplastic bags containing bath salts (a class C controlled drug) and a sleeping pill.[8] Mr Gebremedhin subsequently entered guilty pleas to:(a) Possessing a restricted medicine without reasonable excuse; and(b) Possessing a class C controlled drug.[9] On 5 September 2017, Mr Gebremedhin was bailed to appear at AucklandDistrict Court. He failed to appear. He later entered a guilty plea to failing to answerDistrict Court bail. He was subsequently released on bail.1The December offending[10] Mr Gebremedhin got into a taxi on Shortland Street at about 9 pm on 29December 2017. Because Mr Gebremedhin appeared very intoxicated, the driverasked him to choose a different taxi. Mr Gebremedhin became angry and abusive. Thedriver got out and called the Police.[11] Mr Gebremedhin started kicking and throwing things around the taxi. He gotout and poured beer on to the taxi. He punched a side mirror causing it to break. Hewas still chasing the driver around the taxi when Police arrived.[12] Mr Gebremedhin entered guilty pleas to charges of:(a) Wilful damage; and(b) Disorderly behaviour.1 There appears to be no summary of facts available for this offending. This description is basedupon the charging documents and submissions from counsel.Sentencing[13] For sentencing purposes, the Judge broke the offending into two parts. The firstpart comprised the failure to answer bail, and the drug offending. The second partcomprised the wilful damage and disorderly behaviour, known as the Decemberoffending. On the first part, the Judge took the failure to answer bail as the lead charge.His start point for this offending was four months. He uplifted this by two months toaccount for the drug offending. The Judge then added a further two months foroffending while on bail and for Mr Gebremedhin's prior convictions (of which therewere many). He applied a one month (12.5 per cent) discount for guilty plea. Thisresulted in an end sentence of seven months. The Judge adopted a two-month oneweek start point reduced by one week for guilty plea (a 10 per cent discount) for theDecember offending. This resulted in a cumulative sentence of nine months.Jurisdiction[14] An appeal will be successful only if the appellant can point to an error, eitherintrinsic to the Judge's reasoning, or because of additional material submitted on theappeal which vitiates the sentencing decision of the Court below.2 Unless there is amaterial error in sentence, for example, that it is manifestly excessive, manifestlyinadequate, or wrong in principle, an appellate court will not intervene.The submissions[15] Mr Grainger for Mr Gebremedhin contends that the Judge's decision ismanifestly excessive on its face. He notes that a four month start point for a singlefailure to answer bail is unprecedented, and that the drug possession charges wouldnormally attract a non-custodial sentence. An uplift for prior offending, he accepts, isappropriate, but excessive in this case given the excessive start point. The Decemberoffending, he says, should really have only attracted a one month cumulative sentence.[16] The respondent accepts the sentence is harsh but within range:2 Tutakangahau v R [2014] NZCA 279 at [29]-[31].(a) The sentence for the bail offending, at one third of the maximum, wasavailable to the Judge.(b) The two-month sentence on the drug charges was available though atthe upper end.(c) The two-month uplift for Mr Gebremedhin's offending while on bailand very poor conviction history was also within range.(d) A two-month cumulative sentence for the wilful damage offending waswell within range.Analysis[17] It is common ground the Judge erred in assuming two bail breaches rather thanone. I apprehend this error may have led the Judge to take a strongly adverse view ofMr Gebremedhin, particularly when added to his poor conviction and compliancehistory. But Mr Gebremedhin was in fact facing only one charge for bail breach.Furthermore, as counsel I think accept, it can be inferred it was not a serious bailbreach because he was subsequently released on bail. I am therefore unable to supporta starting point of four months for the failure to answer bail. It is manifestly excessive.It is not supported by authority.3 A starting point in the order of one to two months(at most) was justified for this single breach.[18] This then has a knock-on effect in terms of the subsequent uplifts. A 100 percent uplift (of two months) for offending that presumptively attracts a non-custodialsentence is excessive,4 as is a further 50 per cent uplift (of two months) for priorconvictions and offending while on bail. For my part, a combined uplift of 50 per cent(or one month) on a start point of two months for both these factors is appropriate. Atwo month, one week cumulative sentence for the December offending was howeverwithin range.3 See for example, R v Walters [2012] NZHC 1750 at [26], where a conviction and discharge wasimposed for failing to appear. In Williams v Police [2014] NZHC 2622 at [23], a one month uplifton a sentence of two years seven months was imposed for failing to appear. In Dick v Police [2014]NZHC 434 at [21], failing to appear attracted a one month uplift on a sentence of two years.4 Misuse of Drugs Act 1975, s 7(2).[19] I am unable to agree with the Judge's approach to the guilty plea discounts.The guilty plea for the bail and drug related offending was given at the firstopportunity. The guilty plea on the December offending was also given immediatelyon the amendment of the charges. The starting point for discount should have been 20-25 per cent for both sets of offending.[20] The respondent contends that two factors militate the extent of the guilty pleadiscount – the strength of the Crown case, and the delay in sentencing caused by MrGebremedhin's failure to comply with procedural requirements. But the strength ofthe Crown case is attributable in part to Mr Gebremedhin's confession (i.e. earlyadmission of guilt) and I do not consider conduct after entry of plea, which does notbear on the admission of guilt, should reduce the guilty plea discount.5 Accordingly,a 20 – 25 per cent discount should have been afforded for the pleas.[21] In the result, the Judge's sentence of nine months is to be compared with myassessment of sentence at about three – four months after guilty plea discount. Whilethe Judge's firm stance is understandable, the cumulative effect of his incorrect startpoint and a stern approach to uplifts has meant that the sentence overall is manifestlyexcessive.Outcome[22] The appeal is allowed. The sentence of nine months is set aside. I substitute asentence of three and a half months.5 It might however be a personal aggravating factor, but this was not argued either in the DistrictCourt or before me so I say no more about it.