SOPER v POLICE [2019] NZHC 149

SOPER v POLICE [2019] NZHC 149 [14 February 2019]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2018-425-000032[2019] NZHC 149BETWEEN LUKE PHILIP SOPERAppellantAND NEW ZEALAND POLICERespondentHearing: 4 February 2019Appearances: J Ross for the AppellantS N McKenzie for the CrownJudgment: 14 February 2019JUDGMENT OF NATION J[1] Mr Soper pleaded guilty to charges under the Summary Offences Act 1981 ofobstructing Police and disorderly behaviour likely to cause violence. He wassentenced in the Invercargill District Court on 1 November 2018 to two fines of $800each. His partner (Ms Batt) pleaded guilty to three charges under the SummaryOffences Act arising out of the same incident. On the same day, the same Judge finedher $200 on each charge. Mr Soper appeals his sentence based on the claimed disparityin sentences.FactsMr Soper's offending[2] At approximately 10.00 pm on 6 October 2018, Mr Soper was a passenger ina vehicle that was stopped for an evidential breath test. Mr Soper was with Ms Battand another male, the driver of the vehicle. The driver was detained by police andplaced in a Police vehicle.[3] Mr Soper approached the patrol vehicle and passed a drink to the driverthrough an open window, telling him to drink it. Police intervened, took the bottle andwarned him to stop. Mr Soper snatched the bottle back from the officer's grip,approached the Police vehicle again and gave the driver the bottle, allowing him todrink another mouthful. The Police officer intervened and removed the bottle a secondtime.[4] At this point, Mr Soper became aggressive and started to yell obscenities at theofficer. Mr Soper raised both of his arms above his head and yelled gang slogans atthe officer. He repeatedly challenged the Police to fight him. Soon after, Mr Soperadvanced towards the Police. As he did so, Ms Batt stood in front of him and attemptedto hold him back and stop him.[5] Mr Soper lunged at the officer and attempted to grab him. Mr Soper waspushed by the officer and he fell backwards to the ground where he was restrained andhandcuffed. The detained driver used the opportunity to get out of the Police vehicleand walk away.Ms Batt's offending[6] Ms Batt was charged with obstructing police, assaulting police and resistingpolice.[7] When Mr Soper was handcuffed, Ms Batt became aggressive and abusivetowards the Police. Her obstruction further enabled the detained driver to leave thePolice vehicle and walk away. The Police officer was forced to pursue the driver.With the officer distracted, Ms Batt encouraged Mr Soper to flee. She also encouragedhim to fight two Police officers who were restraining him.[8] Mr Soper was eventually put in the back seat of the Police vehicle by theofficer. Ms Batt tried to sit beside him; she was removed from the vehicle and placedunder arrest. As she was handcuffed, Ms Batt attempted to kick the male officer in thegroin area. The kick hit the officer in the leg but he was not injured.[9] Ms Batt struggled violently to break free as she was restrained and handcuffed.District Court sentencing[10] The District Court Judge sentenced both Mr Soper and Ms Batt on 1 November2018. Mr Soper's counsel told me Mr Soper was sentenced first and Ms Batt a shorttime later but not immediately so. Mr Ross had appeared for Mr Soper and Mr Moreappeared for Ms Batt.[11] The sentencing took place during list appearances. The Judge's remarks onsentencing were brief. For Mr Soper:[1] Mr Soper, the task of the police is difficult enough without havingdrunken people interfere with them, and it is quite clear on this occasion thatthat was the case.[2] I know that you have been on a curfew for a while and some wouldsay that you have already had your punishment. Quite frankly, everything youdid you brought upon yourself.[3] In the circumstances, on each charge I fine you $800 plus Court costs,to be paid by 31 December 2018.For Ms Batt:[1] As I said previously but you may not have heard it, the police are thereto do a job and they do not need to have people, drunk or sober, interferingwith that.[2] As it was, it may well have been that you started off with the best ofintentions but then things went awry and you ended up obstructing, resistingand assaulting police officers.[3] In the circumstances, I will fine you $200 on each charge (that is atotal of $600) plus Court costs on every charge. That is to be paid by 31December 2018.[4] This is your first foray into the adult Court. You are only 18. Makesure it is your last, because quite frankly you are a person who clearly is keento work and keen to get ahead in life. Just make sure that we do not see youback here again.Principles on appeal[12] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied there hasbeen an error in the imposition of the sentence and that a different sentence should beimposed.1 As the Court of Appeal stated in Tutakangahau v R, "an appellate court willnot intervene where the sentence is within the range that can properly be justified byaccepted sentencing principles".2 It is only appropriate for this Court to intervene andsubstitute its own views if the sentence being appealed is "manifestly excessive" andnot justified by the relevant sentencing principles.3The appeal[13] Before me, Mr Ross confirmed that it was only because of the disparity insentences that the sentence imposed on Mr Soper could have been in error. But fordisparity, the sentence on Mr Soper would not have been challenged. Mr Ross arguedthere was an error in the sentence imposed in that the marked disparity in sentenceswould lead a reasonably minded independent observer to believe that something hasgone wrong with the administration of justice. He submitted that a reduced fine for atotal of $600 should be imposed.[14] In Mr Ross's submission, both sets of offending were cases where the offendersbehaved poorly. He argued there was nothing to indicate that Mr Soper behaved in amore abhorrent fashion than Ms Batt. Arguably, Ms Batt acted in a more unsavouryfashion considering she incurred three charges, including assault on a Police officer,whereas Mr Soper was sentenced on one fewer charge.[15] Mr Ross sought to examine the sentence based on the Taueki method ofsentencing.4 Under that methodology, first the Judge must set a starting point to takeaccount of the facts of the offending. Then the Judge should apply any discounts or1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].3 Ripia v R [2011] NZCA 101 at [15].4 R v Taueki [2005] 3 NZLR 372 (CA).uplifts based on the offender's personal circumstances. The last step is to apply anydiscount for a guilty plea.[16] The Judge had not expressly followed the Taueki method of sentencing. Giventhe nature of the offending and the fact the sentencing occurred during listappearances, Mr Ross said he was not suggesting this was a ground for interferingwith the sentence. He nevertheless addressed the sentences imposed, trying to workback from the fines ultimately fixed for each offender, assuming Mr Soper would havereceived a credit of 25 per cent for guilty pleas and Ms Batt would have received atotal credit of between 30 to 40 per cent: a 25 per cent for her guilty pleas, and for heryouth and good character. He suggested that, working backwards, the starting pointfor Mr Soper's offending would have been $2,133.33, reduced by 25 per cent to theactual fines imposed of $1,600.[17] Mr Ross submitted that, if the starting point for Ms Batt's offending shouldhave been similar, that is $2,133.33, the fines imposed on her of $600 would have beenequivalent to a discount of 72 per cent. He submitted that, given the discounts thatmight have been appropriate, the end sentences must have reflected a starting pointfor Mr Soper's offending in excess of $2,000 and for Ms Batt a starting point in excessof $1,000. He referred to the end sentence for Mr Soper as being 2.5 times greaterthan Ms Batt's sentence.Analysis[18] Analysed in these different ways, Mr Ross argued there was a disparity of thesort that required the situation to be rectified through a reduction in Mr Soper'ssentence.[19] A principle of sentencing is that the Court:5[M]ust take into account the general desirability of consistency withappropriate sentencing levels and other means of dealing with offenders inrespect of similar offenders committing similar offences in similarcircumstances.5 Sentencing Act 2002, s 8(e).[20] In R v Lawson, the Court of Appeal noted that the integrity of the criminaljustice system is put in issue if the public perceives a lack of consistency in the waythe Court sentences offenders:6[A] marked difference in the sentences imposed on co-offenders, and forwhich no justification can be shown, may be of importance to theadministration of justice generally in that such a marked and unjustifieddifference will tend to bring the administration of justice into disrepute. TheCourts must bear in mind that public confidence in the administration ofjustice is best preserved if justice appears to be administered evenhandedly.[21] However, it has also been recognised by the Court of Appeal that sentencing isnot an exact science and there will often be legitimate reasons for disparate sentencesbetween co-offenders:7Whilst it is vital for a sentencing Court to strive for parity in sentencing co-offenders (whether sentenced separately or together), parity will not beachieved by a simple measurement against a co-offender's culpability. Paritymeans treating like cases alike and others with due regard for relativedifferences. It is best achieved by sentencing each offender appropriately forhis role in the overall offending, in light of any relevant antecedents and takinginto account any aggravating or mitigating features personal to the offender.[22] In R v Rameka, the Court of Appeal was cognisant of an increased willingnessto allow disparity of sentence as a ground of appeal but cautioned that, simply becauseone co-offender has received too short a sentence, it is not grounds for necessarilyinterfering with a longer sentence imposed on another.8 In each case, the Court mustconsider all the surrounding and infinitely variable circumstances.9[23] Where the sentence appealed is appropriate for the offending, then the disparitymust be unjustified or gross. This is an objective test not based upon what theappellant thinks but whether "a reasonably minded independent observer, aware of allthe circumstances of the offence and of the offenders, would think that something hadgone wrong with the administration of justice".106 R v Lawson [1982] 2 NZLR 219 (CA) at 223.7 R v K (2003) 20 CRNZ 62 (CA) at [20].8 R v Rameka [1973] 2 NZLR 592 (CA) at 593.9 At 593.10 R v Lawson, at 223.[24] On an appeal, the focus is on the end sentence. The focus must also be on theend sentence for the totality of the offending. The seriousness of the offending in thiscase is to be assessed by reference to what each of the offenders did, rather than thenumber of charges they each faced.[25] In the circumstances of this case, I do not consider it helpful to look at whatnotional starting points for the offending might have been if the Taueki approach hadbeen adopted and particular discounts provided for at the different stages of sentencingon that approach. That is because the focus is on the end sentence and because theCourt has to be concerned whether the public might perceive a lack of consistency inthe approach the Judge took and how that might affect the integrity of the criminaljustice system.[26] On appeal, the Court has to be concerned with whether there werecircumstances about each of the offenders and their particular offending which couldrationally explain the differences in the sentences imposed.[27] Such a rational explanation might well have been clearer if the Judge, in hisremarks, had briefly explained why they were not similar offenders and why he treatedMr Soper's offending as more serious. Nevertheless, there was at least an obliquereference to these matters in his brief sentencing remarks and such a rationalexplanation is apparent from the information which is now before me.[28] Mr Soper was 23 years of age. He had 16 convictions for various offences,including four for wilful damage (family violence) and five which reflected a lack ofrespect for Court orders or legal obligations such as driving while disqualified andbreach of community work. He also had dishonesty convictions. His lack of respectfor authority was evident in the offending for which he was sentenced, his attempt tointerfere with what the Police were doing, his yelling obscenities and gang slogans atthe Police and challenging the Police to fight him. It was Mr Soper who instigated theoffending in which both he and Ms Batt were involved.[29] In contrast to Mr Soper, when Mr Soper became aggressive and advancedtowards the Police officer, rather than initiating the offending, Ms Batt stood in frontof him and attempted to hold him back. It was only after Mr Soper was arrested thatshe became aggressive, started swearing and abusing the Police and offended in theway already described. Ms Batt was only 18. I do not have details of her previousconvictions but the Judge said that this was the first occasion on which she hadappeared on a charge in the adult Court. He must also have been given informationthat satisfied him she was a person who was "keen to work and keen to get ahead inlife", that is, to live in a law-abiding and prosocial way.[30] On all the information that was available to the Judge and to me, I have notbeen persuaded that the difference in the sentences imposed on the two offenders wasso marked and so unjustified as to bring the administration of justice into dispute.There were sufficient reasons for the Judge to deal with them differently. I have notbeen persuaded that, by reason of disparity, the sentence imposed on Mr Soper wasmanifestly excessive.[31] Mr Soper's appeal is dismissed.Solicitors:Montrose Chambers, InvercargillPreston Russell Law, Invercargill.