PUI v POLICE [2021] NZHC 352

PUI v POLICE [2021] NZHC 352 [3 March 2021]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2020-463-141[2021] NZHC 352BETWEEN LEON DAVID TEKAHA RATAHI PUIAppellantAND NEW ZEALAND POLICERespondentHearing: 16 February 2021Appearances: J W Howell for AppellantE F Collis for RespondentJudgment: 3 March 2021JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 3 March 2021 at 2:30 pmRegistrar/Deputy RegistrarSolicitors:Adams Law, TaurangaCrown Solicitor, Tauranga[1] On 3 November 2020, Judge Harding in the District Court at Tauranga1sentenced Mr Leon Pui (the appellant) to concurrent terms of 23 months'imprisonment on one charge each of aggravated injury and assault of policeconstables2, and a further concurrent term of six months' imprisonment on a singlecharge of escaping lawful custody.3[2] The aggravated assaults were second-strike offences and the appellant willaccordingly serve the full term of his sentence on those charges without the possibilityof parole.4[3] The appellant now appeals against the sentence imposed saying that thestarting point adopted by the Judge was too high, resulting in the end sentence beingmanifestly excessive. He submits that an end sentence of 20 months' imprisonmentought to have resulted.Offending[4] The Police summary of facts notes that the appellant is a patched member ofthe Bay of Plenty Mongrel Mob. At about 3.00 am on 22 March 2020, the appellantwas gathered with other members of his gang on The Strand in Tauranga. He had beendrinking alcohol and was "moderately intoxicated".[5] One of his gang associates had been arrested and handcuffed by Police fordisorderly behaviour likely to cause violence.[6] The appellant made several attempts to intervene in the arrest of his associateby becoming verbally aggressive and trying to prevent the constables from putting thearrested man in their vehicle. Police warned the appellant several times that he wouldbe arrested if he did not desist.[7] When a constable stepped between the appellant and the officer arresting thegang associate, the appellant began repeatedly punching the police constable around1 New Zealand Police v Pui [2020] NZDC 22757.2 Crimes Act 1961, s 191(1)(b) and s 191(2). Maximum 7 years and 3 years imprisonment.3 Crimes Act 1961, s 120 (c). Maximum 5 years imprisonment.4 Sentencing Act 2002, s 86C(4)(a).the head, hitting him at least eight times and forcing him to the ground. When on theground, the constable attempted to take hold of the appellant's leg, and the appellantkicked the constable on the body. The constable then drew his taser, and the appellantfled.[8] Another constable chased him, and the appellant turned and swung a punch athim narrowly missing his head.5 The pursuing constable then used his taser, to subduethe appellant, and he was arrested and taken into custody.[9] The first constable who the appellant had punched in the head, forced to theground and kicked, was hospitalised and found to have suffered concussion. Hesuffered a split eyebrow, swelling to his right eye, and grazing to his right elbow. Itwas also suspected that he suffered fractures to his eye socket and nose, however thesesuspected injuries could not be confirmed by the hospital due to the progress in hishealing process. As a result of his injuries he was unable to work for five weeks, andfollowing his return to work had to be placed on light duties.6[10] Although it is not mentioned in the summary of facts, I infer that the appellanthad been placed under arrest before he fled, resulting in the charge of escaping lawfulcustody.7The Judge's sentencing decision[11] Having reviewed the facts of the appellant's offending as set out in theprosecution summary of facts, the Judge observed that the appellant was "someonewith a history of prior convictions for violence and for attacking the Police". TheJudge noted the appellant had convictions in 2014 for threatening to kill, assaultingpolice, and three other convictions for resisting Police, as well as a 2012 convictionfor robbery by assault.85 Section 120(c). Maximum penalty five years' imprisonment.6 Crimes Act 1961, s 191(2). Maximum penalty seven years' imprisonment.7 Section 192(1)(b). Maximum penalty three years' imprisonment.8 New Zealand Police v Pui [2020] NZDC 22757 at [4].[12] The Judge noted that the pre-sentence report said that the appellant maintainedthat, as a result of his intoxication at the time of his arrest, he had no memory of hisactions for which he was charged. The Judge also noted that the appellant had finallyaccepted that he cannot handle alcohol, and that much of his offending has beenprecipitated by the use of alcohol. The Judge commented that although it was said onthe appellant's behalf that he was extremely remorseful and truly sorry, thepre-sentence report only noted that the appellant was regretful for the injuries thatresulted, and there was no suggestion in the pre-sentence report that he was extremelyremorseful.9[13] Having administered and explained the second-strike warning required byreason of the appellant's previous conviction for a serious violence offence in 2012,10the Judge noted that the appellant's counsel accepted that a sentence of imprisonmentwas appropriate. The Judge also noted Mr Howell's submission that a starting pointof two years, three months' imprisonment was appropriate, which was based oncounsel's submission that the appellant's offending fell at the higher end of band twoor the lower end of band three in Nuku, and that the cases of Wright and Wynd, involvedmore serious offending11[14] The Judge however disagreed. Taking the aggravated injury charges as thelead offending, he adopted a starting point of three years' imprisonment on the basisthat the offending involved a "deliberate and sustained attack against police officers",as well as a number of other aggravating features.12 The Judge explained that he wouldimpose concurrent sentences in respect of all charges as the offending arose from asingle sequence of events, and also because "the offending against the other officersamounts to a further aggravating factor to be taken into account here."13[15] The Judge then added an uplift of three months on account of the appellant'sprevious convictions, and allowed discounts totalling 40 per cent (which are notchallenged on appeal) in respect of the appellant's cultural and family background, his9 At [13].10 Sentencing Act 2002, s 86C.11 New Zealand Police v Pui [2020] NZDC 22757 at [10], referring to Nuku v R [2012] NZCA 584,[2013] 2 NZLR 39; R v Wright [2014] NZCA 119; and Wynd v Police [2013] NZHC 1270.12 At [15].13 At [11]."late" guilty plea, and "such remorse as is evidenced".14 This produced an endsentence of 23 months' imprisonment on the assault charges, with a concurrent sixmonth sentence imposed on the escaping lawful custody charge.15The Appeal and Submissions[16] Mr Howell for the appellant contends that the appropriate starting point wasbetween 27 and 33 months' imprisonment, as opposed to the 36 months adopted bythe Judge. He submits that the Judge erred in treating the aggravated assault as anaggravating feature of the aggravated injuring offending. Had the Judge not erred inthese respects, Mr Howell submits, an end sentence of no more than 20 months wouldhave resulted. As the appellant is required to serve the whole term of his sentencewithout parole, the sentence actually imposed, being three months longer than the 20months that counsel submits ought to have been imposed, results in a sentence that ismanifestly excessive.[17] Ms Collis for the Crown submits that the starting point adopted by the Judgewas within range, having regard to comparable cases. She submits that although thecase of Wright,16 where a starting point of three years was upheld by the Court ofAppeal, is broadly similar to the present, an important distinction exists. This is, shesubmits, that the appellant here assaulted two police officers, and that he was convictedof more serious charges which carry a maximum penalty of seven years imprisonment– whereas the single charge in Wright was one of injuring with intent, which carries alesser maximum of five years imprisonment.17[18] Crown counsel submits that it was entirely appropriate for the Judge to accountfor the offending against the second police constable either as part of determining thestarting point for the two assaults on the police, or as an uplift. She submits the Judgewas entitled to impose a moderate uplift for the second assault charge, and notes thatthe appellant does not in fact take issue with the uplift. In any event, counsel submitsthat the total discounts allowed to the appellant in respect of personal mitigating14 At [15].15 At [16].16 R v Wright [2014] NZCA 119.17 Crimes Act 1961, s 189(2).factors were generous, such that no issue can be taken with the end sentence, which isnot manifestly excessive.Approach on Appeal[19] This first appeal against sentence is brought as of right pursuant to s 244 of theCriminal Procedure Act 2011. Pursuant to s 250 of the Act, the Court must allow theappeal if satisfied that, for any reason, there is an error in the sentence imposed andthat a different sentence should be imposed.18 Otherwise, the appeal must bedismissed.19[20] The Court on appeal does not simply substitute its own evaluation of theappropriate sentence. Rather, it must be satisfied there was an error "whetherintrinsically, or as a result of additional material submitted"20 on appeal, in the sensethat the end sentence was manifestly excessive having regard to ordinary sentencingprinciples,21 and only then determining whether another sentence should be imposed.22As Crown counsel correctly submits, the ultimate focus in considering whether adifferent sentence should be imposed is on the end sentence imposed.23Discussion[21] As regards the appropriate starting point, Mr Howell says that the starting pointadopted should have been lower than that adopted in the cases to which the Judgereferred at sentencing – Wright and Wynd – as he submits the offending in those caseswas comparatively more serious than the appellant's.[22] As noted, Wright involved a single charge of injuring with intent to injure, themaximum penalty for which is five years' imprisonment; that is, two years less thanthe maximum penalty for the lead offence here.18 Criminal Procedure Act 2011, s 250(2).19 Section 250(3).20 R v Shipton [2007] 2 NZLR 218 (CA) at [139], approved after the commencement of the CriminalProcedure Act 2011 in Tutakangahau v R [2014] NZCA 279 at [30].21 Palmer v R ; Kumar v R ; Tutakangahau v R [2014] NZCA 279 at [35]-[36].22 Tutakangahau v R [2014] NZCA 279 at [30]-[35].23 Islam v R [2020] NZCA 140 at [32].[23] The brief facts of that case are as follows. Mr Wright was standing outside apublic library when a constable drove past him and he shouted obscenities at theofficer. The officer stopped the car and approached Mr Wright, who had by that pointentered the library. Mr Wright nevertheless continued his tirade. He was arrested fordisorderly behaviour, handcuffed, and taken to the Police station. Once one cuff wasremoved, Mr Wright punched the officer in the mouth, causing him to fall backwardson to the concrete floor and stunning him. Mr Wright then continued to punch theofficer in the head and face, landing over thirty blows, while the police officer tried tocover his head and face with his hands. It took two officers and the use of a broomand pepper spray to restrain him and place him in a police cell. The attack involved ahigh level of violence which had continued for several minutes and resulted in thepolice officer suffering extensive cuts and bruises over his face, head and forearms,and lacerations around his left eye that required stitching. Following the assault theconstable suffered considerably from delayed concussion. As a result of his injuriesand concussion the constable was unable to work for two months and returned to workon a graduated and part-time basis.24[24] On a Solicitor-General's appeal, the Crown submitted that, applying Nuku,25the Judge ought to have identified a starting point of no less than four years, as opposedto the three year starting point adopted.26 The Crown said the offending ought to havebeen placed at the upper end of band three, involving, as it did, four Taueki culpabilityfactors – attacking the head, use of a weapon (the cuffs still wrapped around hiswrists), causing serious injury, and assault on an officer in the execution of his duty.27[25] The Court of Appeal disagreed, considering that the starting point of threeyears adopted was not too low, and noted that it was was within the range the Crownhad contended for at sentencing. The Court of Appeal found that although a handcuffremained attached to the defendant's wrist and may have contributed to some of theinjuries inflicted on the officer, as Mr Wright's offending was not categorised in terms24 R v Wright [2014] NZCA 119 at [3]-[9].25 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.26 R v Wright [2014] NZCA 119 at [18].27 At [18].of the charge he faced, or in terms of the summary of facts, as an attack with a weapon,it would be wrong to categorise his actions as such for sentencing purposes.28[26] While the offending in Wright is broadly similar to that of the offending againstthe constable who the appellant punched around eight times in the head, I agree withMr Howell that the offending in Wright was more serious having regard to the focussedand extended attack to the head, which resulted in serious injuries. Mr Howell iscorrect that this would tend to indicate the adoption of a starting point lower than thethree years adopted in Wright.[27] However, it is important to note that Wright was a Solicitor-General's appeal,such that the Court of Appeal, in upholding the starting point, can be taken only ashaving found that the starting point adopted was not so low as to result in a manifestlyinadequate sentence being imposed. In particular, the Court of Appeal did not makeany comment to the effect that the starting point was stern or at the upper end of theavailable range. The context in Wright of the Solicitor-General's appeal, and the lowermaximum penalty of the charge involved, means a direct comparison between thatcase and the present on the basis that they are equivalent is not available.[28] I consider that Asher J's decision in Wynd is of greater assistance in thisrespect.29 Mr Wynd was at a bar with workmates in the early hours of the morning.The victim made comments to a woman at the bar to which Mr Wynd took exception.Becoming aware of this, the victim had hidden in the toilets before attempting to gohome. Mr Wynd, who had been waiting for the victim, applied his martial arts trainingto kick the victim in the head. As the victim laid crumpled on the ground, Mr Wyndproceeded to punch him several times about the face and head, also rubbing an emptybeer bottle in the victim's face. The victim was knocked unconscious, suffered asevere wound to the scalp, had swelling about the face and eyes, and had to spend sixdays off work.3028 At [19]29 Wynd v New Zealand Police [2013] NZHC 1270.30 At [1]-[6].[29] Mr Wynd, to whose offending Nuku did not apply, appeared for sentence in theDistrict Court. The Judge, applying Taueki, identified the offending as aggravated bythe extreme, unprovoked, and prolonged nature of the violence directed at the victim'shead; the aspect of premeditation; the relatively serious injuries inflicted; the use of abottle; and the vulnerability of the victim. A starting point of two years and ninemonths' imprisonment was adopted.31[30] On appeal, Asher J agreed with the Judge's overall assessment of theaggravating features of the assault and its seriousness, while noting an aspect of doublecounting in the Judge's reference to serious injuries and vulnerability. He observedthat Mr Wynd was fortunate to have been convicted of only wounding with intent toinjure, and not on a more serious charge.32 The Judge considered that, had Nukuapplied, the offending would have fallen within band three, and that "the starting pointfixed by the Judge of two years and nine months was well within the range and couldhave been higher."33[31] I respectfully agree, and also agree with Mr Howell that the appellant'soffending against the constable he punched was less serious than the offending inMr Wynd's case, insofar as it involved no premeditated aspect of lying in wait for thevictim, a less severe measure of violence, and no use of a weapon. On the other hand,here there is present the additional element of this being an assault against a policeofficer in the course of carrying out his duties, and the extent of the constable's injurieshere, which were considerably more severe than those inflicted on Mr Wynd's victim,whose short term severe injuries passed quickly. Here the constable was left with anextended concussion that impaired him from working for some time. In this respect,I note that while "it can sometime be a matter of luck how bad the resulting injuriesare"34 after an assault, the Court of Appeal has rejected the "submission that theassessment of criminality should focus on the conduct of the attacker and not on theconsequences for the victim."3531 At [8], citing R v Wynd DC Auckland CRI-2012-005-14937, 4 April 2013.32 At [10].33 At [13].34 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [30].35 At [30] fn 32, citing R v Taueki [2005] 3 NZLR 372 (CA) at [31(c)].[32] A difficulty which arises when making such comparisons, despite the featurescommon to each of these violent acts, is the different charge in each case, with itsdiffering maximum penalty, and different elements relating to criminal intent. Herethe appellant's assault on the constable was undertaken for the purpose of facilitatingthe flight of another offender following the commission of an imprisonable offence.That aspect of criminal intent was not present in the cases of either Wright or Wynd.[33] On an overall assessment, I consider that additional aggravating features of theappellant's offending, by involving offending against a police officer for the purposesof facilitating the flight of an associate, makes the appellant's offending more culpableand serious than that of Wynd.[34] The maximum penalty for offending under s 191 of seven years' imprisonment,compared to the injuring with intent to injure offending in Wright, which was chargedunder s 189(2) which carries a five year maximum penalty, indicates that theappellant's offending is to be considered as inherently relatively more serious thanMr Wright's offending against the police officer in that case. While the violence andduration of the assault in Wright was more serious than the present case in terms of theharm intended and done, the offending in Wright was not undertaken in an attempt tofacilitate his flight or the flight of another offender. That additional element of intentinvolved in the appellant's offending, and the inherently more serious nature of hisoffending as evident by reason of the maximum penalty provided for the offence,points towards and justifies the adoption of a higher starting point in this case. Suchan approach is consistent with the sentencing principle contained in s 8(b) of theSentencing Act 2002 which requires the court to "take into account the seriousness ofthe type of offence in comparison with other types of offences, as indicated by themaximum penalties prescribed for the offences".[35] In Wynd the charge involved carries the same maximum penalty as the leadcharge here and the offending must therefore be taken as having the same inherentseriousness. However, for the reasons I have explained, I consider the appellant'soffending to be more serious than the offending in Wynd.[36] For these reasons I am not satisfied the three year starting point adopted by theJudge for the assault on the constable was excessive. In any event, the starting pointis consistent with the placement of this offending at the upper end of band two or thelower end of band three in Nuku, as was submitted by Mr Howell at sentencing and aswas adopted by the Judge. This band placement is consistent with the moderatelyserious injuries inflicted in a sustained attack directed to the head of the victim, whowas a police officer, and which was undertaken for the purpose of facilitating flight ofan associate from the police. I also note the moderate connection with gang activity,and the overall culpability disclosed by the facts of the offending.36[37] Nor can any criticism be made of the Judge having treated the rather lessserious assault on the pursuing constable as an "aggravating factor" of this offending.This was merely the Judge's way of constructing the sentence to include a necessaryuplift for this further offence on a totality basis by making an adjustment to arrive atan overall starting point for the lead charge. The figure arrived at must also be takenas including, on a totality basis, the escaping lawful custody charge, as a further aspectof the offending which included the assaults on the police officers. That the Judgetook the escape from custody offending into account in determining the starting pointhe adopted is apparent by him imposing a six month concurrent sentence in respect ofthat charge at the conclusion of the sentencing.37 As the three year starting pointadopted would have been appropriate, even before acknowledging these necessaryuplifts, the three years adopted by the Judge was in my view clearly not excessive.[38] Accordingly, having regard to my finding that the starting point was notexcessive and the generous discounts afforded to the appellant on account of personalfactors and his guilty pleas, I find that the Judge did not err in the sentence he imposed,and I find that the appellant has not shown that the sentence imposed was manifestlyexcessive and that a different sentence should now be imposed.[39] For those reasons, I shall dismiss the appeal.36 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [37]-[45].37 New Zealand Police v Pui [2020] NZDC 22757 at [16].Result[40] The appeal is dismissed._____________Paul Davison J