NATUA v R [2018] NZHC 3278

NATUA v R [2018] NZHC 3278 [12 December 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000345[2018] NZHC 3278BETWEEN LUKE NATUAAppellantAND THE QUEENRespondentHearing: 11 December 2018Counsel: J Verry for AppellantHG Max for RespondentJudgment: 12 December 2018JUDGMENT OF DOWNS JThis judgment was delivered by me on Wednesday, 12 December 2018 at 4 pm.Registrar/Deputy RegistrarSolicitors/Counsel:J Verry, Auckland.Crown Law, Wellington.The appeal[1] Judge J Jelas sentenced Mr Luke Natua to a term of two years and two and ahalf months' imprisonment.1 Mr Natua supplied methamphetamine, offered to supplythat drug, unlawfully possessed a firearm and ammunition, received stolen property,and assaulted Police. Mr Natua appeals. He contends the sentence is manifestlyexcessive. Attention is invited to the starting point and totality principle.Background[2] On 9 August 2017, Mr Natua's associates robbed two victims of their FordMondeo. The offenders wielded a sawn-off .22 rifle. Mr Natua received the Mondeothe next day. And the rifle. On 21 August 2017, Mr Natua was stopped by the Police.The rifle was in his car—loaded. Over the preceding three weeks, Mr Natua had dealtmethamphetamine at street level. The precise amount of drug remains unknown, butwas likely less than five grams. Mr Natua appeared in Court on 22 August 2017 (theday after his arrest). He was remanded in custody. Mr Natua refused to leave thedock. He twice kicked a male Police officer, including to the groin. Mr Natua alsoattempted to headbutt the officer.[3] Judge Jelas adopted a starting point of two years' imprisonment for themethamphetamine offending. The Judge increased the starting point by 15 months forthe firearms offending and receipt of stolen property. Discounts for personalcircumstances and guilty pleas left a sentence of two years' imprisonment, to whichthe Judge added two and a half months for the in-court assault on the Police officer.The global starting point[4] Mrs Verry takes no issue with the starting point of two years for the drugsoffending, but contends the global starting point of 39 months' imprisonment was toohigh. Mrs Verry submits if the firearms and receiving offending had occurred withoutany other offending, a starting point of 15 months would be manifestly excessive.21 Police v Natua [2018] NZDC 22361.2 Mrs Verry placed little weight on this point at the hearing.[5] Case law addresses this submission. Byles v R involved similar offending: asawn-off. 22 rifle was found in a car during a search.3 The Court of Appeal upheld astarting point of two years' imprisonment. In Dewes v Police, the High Court uphelda starting point of two and a half years' imprisonment for possession of a sawn-offshotgun.4 As here and in Byles, the gun was found in a car.[6] Two other High Court decisions are relevant. In Head v Police, a two-yearstarting point was upheld in relation to a loaded shotgun, cartridges and a crossbow.5And, in Herewini v Police, a two and a half-year starting point was "well within theJudge's discretion" in relation to a sawn-off shotgun under the front passenger seat,two knives and a crossbow.6[7] Judge Jelas was concerned not just with Mr Natua's possession of a loadedgun, but also his recent possession of a stolen car taken by his associates at gunpoint.An uplift of 15 months was easily reached.The assault on the Police officer[8] Mrs Verry observes offending of this nature can attract a concurrent sentenceand should have, particularly given the totality principle. She contends the overallsentence is manifestly excessive.[9] Assaulting a Police officer in the execution of duty significantly aggravatespenalty, a factor recognised by both the Legislature7 and Courts.8 Consequently,denunciation and deterrence are pre-eminent considerations. While Mrs Verry iscorrect such offending can result in a concurrent sentence, her cited example—R v Duthie—is a reminder if this happens, the global starting point must be increased.9Mr Duthie dealt drugs and shot (twice) at a Police officer. The drug offending attracteda starting point of eight years' imprisonment, which Stevens J increased by five yearsfor Mr Duthie's use of a firearm against a Police officer.3 Byles v R [2013] NZCA 18.4 Dewes v Police HC Christchurch A60/03, 12 June 2003.5 Head v Police [2017] NZHC 1733.6 Herewini v Police [2014] NZHC 2396 at [28].7 Sentencing Act 2002, s 9(1)(fa).8 For example, see R v Thomas (2003) 20 CRNZ 538 (CA).9 R v Duthie HC Rotorua CRI-2006-070-5847, 28 August 2008.[10] Judge Jelas did not identify a starting point for the assault. But, if one assumesthat starting point attracted the same level of discount for mitigating features (38percent), it would have been four months.[11] Barnes v Police is apposite.10 Mr Barnes repeatedly kicked a Police officerwhile intoxicated. Like the instant victim, Mr Barnes suffered pain but was notinjured. Ronald Young J quashed a sentence of six months' imprisonment, andsubstituted a cumulative three-month term. In R v Taurere, Wylie J noted "mediumgravity assaults such as kicking and head-butting" tend to attract starting points of oneto a few months, depending on context.11[12] All this suggests the Judge's starting point was unremarkable. Mr Natuarepeatedly kicked the victim, including to the groin, and attempted to headbutt him—in court. So too, as discussed, the other components of the starting point.[13] The totality principle did not require an amelioration of the global starting pointof 43 months' imprisonment for the simple reason it was not disproportionately severe.Mr Natua committed a host of distinct and serious offences between 10 and22 August 2017. A final feature cements this analysis. Mr Natua has a bad record,including a history of violence. The Judge did not uplift the sentence, even thoughshe might have.[14] Mrs Verry notes the imposition of a minimum term has parole ramifications forMr Natua, because a sentence of two years or less would have resulted in release aftera half. But, as Ms Max observes for the Crown, as a "general rule a sentencing courtwill not take into account considerations based upon parole eligibility".12 Thisprinciple was expressly approved in Lord v R, in which the appellant sought to have along-term sentence substituted for a short-term sentence, in order to guarantee his10 Barnes v Police HC Palmerston North CRI-2006-454-3, 7 February 2006.11 R v Taurere HC Whangarei CRI-2011-488-30, 7 July 2011 at [25].12 Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49 at [65]. This general position was discussed andexplained by the Court of Appeal in R v Stockdale [1981] 2 NZLR 189 (CA). See also R v Mwai[1995] 3 NZLR 149 (CA); R v Smith CA310/94, 19 December 1994; R v Staynor CA31/96,7 August 1996; and Tutahi v Police [2014] NZHC 3354. Exceptions to this rule may be made inrespect of offenders being sentenced for their second strike: Barnes at [79]; and Elliott v R [2018]NZCA 526 at [21].release after serving half the sentence.13 The Court of Appeal dismissed the appellant'sargument, confirming that parole consequences are generally irrelevant tosentencing:14... We are sure that [the sentencing Judge] was well aware of the consequencesof a sentence of two years two months in terms of the Parole Act 2002. It iscommonplace for the sentencing issue to be whether the term of imprisonmentshould be less than two years. Generally parole consequences are irrelevantto sentencing.Result[15] The appeal is dismissed...Downs J13 Lord v R [2012] NZCA 276.14 At [24].