WEDGE v NEW ZEALAND POLICE [2017] NZHC 1191

WEDGE v NEW ZEALAND POLICE [2017] NZHC 1191 [2 June 2017]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCRI-2017-488-10[2017] NZHC 1191BETWEEN LANCE EDWARD WEDGEAppellantAND NEW ZEALAND POLICERespondentHearing: 1 June 2017Appearances: J Young for AppellantJ W Wall for RespondentJudgment: 2 June 2017JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by me on 2 June 2017 at 2.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr Wedge pleaded guilty in the District Court to charges of assaulting a female and driving whilst suspended. On 23 March 2017, Judge Ronayne sentenced him to ten months imprisonment.1 He appeals against sentence on the basis that the Judge erred in principle and that the end sentence was manifestly excessive.Background[2] The charge of assaulting a female arose out of an incident that occurred on the morning of 7 January 2017. On that date Mr Wedge and his partner went to seeone of Mr Wedge's friends. Mr Wedge went inside the address and spoke to his friend's girlfriend. This led Mr Wedge's partner to believe that something was going on between Mr Wedge and his friend's girlfriend. She questioned him about it when he returned to the vehicle and this developed into an argument.[3] Whilst Mr Wedge and his partner were driving away from the address, Mr Wedge accused his partner of sleeping with other men. He called her a "drama [queen]", and said that she was useless and did not deserve another child.[4] Mr Wedge then punched his partner in the right shoulder and began to use his elbow to hit his partner in the right shoulder and her right leg. He then tried to hit his partner in the stomach, and said to her as he did so that she did not deserveanother baby. As a result of these blows, Mr Wedge's partner suffered bruising onher right shoulder and leg and suffered significant pain. In a victim impact statementshe said that she was terrified as a result of the incident, and felt like vomitingbecause of the pain. She also said she felt scared for her life, and believed that MrWedge was going to kill her.[5] The charge of driving whilst suspended was laid as a result of an incident that occurred ten days later on 17 January 2017. The police stopped Mr Wedge for a routine compliance check whilst he was driving a motor vehicle. When he could not produce his driver's licence, the police carried out checks and discovered he had been suspended from driving. He told the police in explanation that he had been driving because his passenger was "having a few beers".1 New Zealand Police v Wedge [2017] NZDC 6250.The sentence[6] The Judge took a starting point of nine months imprisonment on the charge of assaulting a female. He applied an uplift of four months to reflect the charge of driving whilst suspended. He then applied a discount of three months to reflect guilty pleas. This produced the end sentence of ten months imprisonment.The appeal[7] Ms Young acknowledges on Mr Wedge's behalf that the Judge had no optionbut to impose a sentence of imprisonment. That was inevitable because Mr Wedge was already in custody on remand on other drugs-related charges that had been laid in February 2017 as a result of an incident that occurred in August 2016. During this incident Mr Wedge came to the attention of the authorities after he had been involved in a motorcycle crash. A sample of his blood showed that he had consumedcannabis and methamphetamine. A backpack that he was wearing was allegedlyfound to contain approximately five grams of methamphetamine and $5900 in cash.[8] Ms Young advises me that Mr Wedge had applied for EM bail on charges laid as a result of this incident, but this had not yet been determined when he was sentenced on the present charges. As a result, he was already in custody when the Judge came to sentence him. A sentence of imprisonment was therefore the only realistic available option.[9] Ms Young submits, however, that the Judge ought to have imposed a much shorter end sentence than one of ten months duration. She contends that a community-based sentence may have been available on the charge of assaulting a female in the event that Mr Wedge had not been in custody at the time of being sentenced. She submits that a starting point of nine months imprisonment on that charge was well outside the available range.[10] Ms Young acknowledges that Mr Wedge has two previous convictions for driving whilst disqualified. She points out, however, that the last of these was entered in 2012. There has therefore been a gap of almost five years since the lastoffending of this type. In those circumstances Ms Young submitted that an uplift of four months was too great.Pre-sentence report[11] A serious irregularity appears to have occurred in the preparation of the pre- sentence report. The front page of the report refers to several charges that were not before the Judge when he sentenced Mr Wedge on 23 March 2017. These includesupplying methamphetamine and driving under the influence of a drug, and wouldappear to relate to the incident that occurred in August 2007. Furthermore, the bodyof the report contains the following paragraphs that clearly related to the othercharges that Mr Wedge currently faces, and had no relevance to the charges on whichhe was being sentenced:Mr Wedge has previously appeared before the Court. His criminal conviction history consists of alcohol related driving and driving related offences with the most recent being 2012. It is identified that there is an escalation in seriousness with regard to the current matters for the purposes of this report, the information contained is in reference to the following charges, Possess Pipe / Utensil for Drugs, Supply/Admin/Deal Methamphetamine/Amphetamine, Drove While Under the Influence Of A Drug and Operated a Vehicle Carelessly. It is noted that there are other active charges before the Court.Mr Wedge is assessed as medium risk of harm due to the gravity of his offending and the potential harm his actions may have in the community. His likelihood of reoffending is assessed as medium also based upon the current escalation.Mr Wedge stated that he has no recollection of the offending and that his memory loss is attributed to the head trauma and concussion resulting from the accident. In relation to the backpack which held the can containing the 5.18 grams of methamphetamine, cash totalling $5960, two cellphones, a ticklist containing names of people with amount owed and a glass pipe, Mr Wedge denied that the pack and contents were his and has pleaded not guilty to the charges.When questioned around his own alcohol and drug use, Mr Wedge reported that he used methamphetamine only on special occasions such as new years eve. The blood test results obtained on the evening of his offending showed his blood to contain the class A Controlled drug methamphetamine and class C controlled drugs ketamine and Midazolam. Mr Wedge was again unable to provide a reasonable explanation however, seemed surprised to find class C drugs present in his system.Mr Wedge stated that he lives a pro social lifestyle and does not associate with criminals. Furthermore he considers himself to be a hardworking young man providing for his family.Alcohol and drugs, specifically methamphetamine, are identified as offending related factors as are his offending supportive associates and attitudes.Mr Wedge's level of motivation to address alcohol and drug issues isassessed as low based upon his minimisation of drug use and an apparent lack of insight into his offending. However, it is recommended that Mr Wedge engage in an alcohol and drug treatment programme.[12] At the beginning of his sentencing remarks, the Judge referred to the fact that the report contained extraneous material and said that he proposed to ignore it. He then said:2[2] But equally, I cannot ignore the fact that you reported to the report writer use of methamphetamine but only on special occasions. You are one of the few people in the world who can take methamphetamine only on special occasions, I do not believe that.[13] During his sentencing remarks the Judge also said:3[11] You are assessed by the writer of the pre-sentence report as being at medium risk of harm because of the gravity, in other words, the seriousness of your offending. As I said earlier, you said that you used methamphetamine but only on special occasions. Blood test results obtained on one particular occasion showed the presence of methamphetamine,cannabis, Ketamine and Midazolam.[12] Your motivation to assess alcohol and drug issues in your life is assessed as low, the recommendation by the report writer is for a term of imprisonment. In a purely practical sense, that really can be the only outcome today. I have considered the submissions made on your behalf, those too are realistic so far as the end outcome is concerned today and I have taken into account the other things said on your behalf.[14] During the course of the hearing, I expressed concern that the Judge may have taken this irrelevant material into account when fixing the starting points for the sentence to be imposed on the two charges that Mr Wedge faced. If that occurred, the sentencing process may have miscarried if it led to the Judge adopting a starting point that was outside the available range for the present offending. For that reason I discussed with counsel the possibility that the case might be remitted to the District Court for Mr Wedge to be re-sentenced having regard to a new pre-sentence report that did not refer to the pending drugs charges.2 New Zealand Police v Wedge, above n 1.3 New Zealand Police v Wedge, above n 1.[15] Upon reflection, however, I am satisfied that this is not necessary.Decision[16] The present appeal is governed by s 250 of the Criminal Procedure Act 2011, which provides:250 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.(2) The first appeal court must allow the appeal if satisfied that—(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.(3) The first appeal court must dismiss the appeal in any other case.[17] The wording of s 250 makes it clear that before the Court can allow an appeal against sentence, it must satisfied there is an error in the sentence that was imposed in the Court below. It must also be satisfied that a different sentence should be imposed.[18] The assault on Mr Wedge's partner had several aggravating features. First, itinvolved both a punch and repeated blows using an elbow. It also involved an attempt to strike the victim in the stomach when she was pregnant. It caused bruising and intense pain to the victim. The assault was also accompanied by comments that can only be described as demeaning and derisive. Furthermore, the victim was vulnerable because she was effectively trapped in a moving vehicle whilst the assault took place.[19] Those factors persuade me that a community-based sentence would not inevitably have been imposed if Mr Wedge had not been in custody on the other charges. The maximum sentence available on this charge was two years imprisonment. I therefore consider that a sentence of nine months imprisonment was within, albeit towards the top of, the available range.[20] Similarly, and notwithstanding the gap in offending between 2012 and 2017, the offence of driving whilst suspended was committed in circumstances where Mr Wedge has two previous convictions for driving whilst disqualified and a conviction for driving with excess breath alcohol. The maximum sentence available to the Judge was again two years imprisonment. Given that background I do not consider that a starting point of four months imprisonment could be said to be outside the available range.[21] It follows that the starting points the Judge adopted were within range and that they have not led to a sentence that was manifestly excessive.Result[22] The appeal against sentence is dismissed.Lang JSolicitors:Crown Solicitor, Whangarei