M v NEW ZEALAND POLICE [2022] NZHC 796

M v NEW ZEALAND POLICE [2022] NZHC 796 [14 April 2022]ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.htmlORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlIN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI-2022-416-4[2022] NZHC 796UNDER the Criminal Procedure Act 2011IN THE MATTER OF an appeal against sentenceBETWEEN MAppellantAND NEW ZEALAND POLICERespondentHearing (by Microsoft Teams):12 April 2022Counsel: B Munro for the Appellant M Mitchell for the RespondentJudgment: 14 April 2022JUDGMENT OF GWYN JSolicitors:Crown Solicitors, GisborneWoodward Chrisp, GisborneSummary[1] On 15 February 2022,1 M was sentenced by Judge Bolstad in the Wairoa District Court to six months' community detention and 15 months' intensive supervision, after pleading guilty to one representative charge of indecent assault;2 one charge of assault in a family relationship;3 and one charge of driving whilst disqualified.4[2] On 4 March 2022, M filed an appeal against sentence.FactsIndecent assault[3] The representative charge of indecent assault arises from offending which took place on 9 February 2016 against the appellant's niece. At the time, the victim was 17 years of age and residing at the same location as the appellant.[4] The offending involved the appellant following the victim into the bathroom, where she was partly dressed, and touching and kissing the victim's breast. The activity lasted for about a minute, after which time the appellant apologised and left the bathroom.Assault in family relationship[5] The victim in relation to this charge was the appellant's partner of seven years. There have previously been eight family harm incidents reported to the Police between the victim and the appellant.[6] The present offending took place on 25 April 2021 and involved the defendant grabbing the victim's hair and pulling it backwards as she was driving and as the appellant was seated behind her. The victim then stopped the vehicle. After exiting1 Police v M [2022] NZDC 5313.2 Crimes Act 1961, s 135 carries a maximum penalty of seven years' imprisonment.3 Crimes Act, s 194A carries a maximum penalty of two years' imprisonment.4 Land Transport Act 1998, s 32(1)(a) and 32(3) carries a maximum penalty of three months' imprisonment or a fine of $4,500; and the Court must order the person to be disqualified from holding or obtaining a driver licence for six months or more.the vehicle, the appellant continued to yell at the victim and spat at her face. The offending stopped when a passer-by urged the defendant to stop and took the victim to safety in their vehicle.[7] No visible injuries were sustained by the victim.Driving whilst disqualified[8] The appellant was subject to a driving disqualification of six months beginning 21 November 2020. On 14 March 2021, the defendant was found to be driving in order to get food.District Court decision[9] Judge Bolstad sentenced M to six months' community detention and 15 months' intensive supervision on 15 February 2022.[10] The Judge considered the appellant's cultural report which identifies M as ayoung Māori man immersed in te reo and tikanga. The report described M's difficult upbringing, where alcohol and violence was normalised, and from which M continues to carry trauma. The report also identified the appellant as trying to address the issues he faces through counselling and as showing deep remorse for his victims.[11] The Judge also considered M's rehabilitative measures around his relationship with his partner and victim for the assault in a family relationship charge. These efforts include attending joint counselling; engaging with a family harm intervention programme and the creation of a safety plan.[12] The Judge adopted the indecent assault charge as the lead charge with a starting point of seven months' imprisonment. The Judge then added an uplift of eight months' imprisonment for the driving whilst disqualified charge. A further uplift of two months was imposed for the assault in a family relationship charge. To reflect the offending while on bail, the Judge added an uplift of one month; and a further one month to reflect a previous driving whilst disqualified conviction. Accordingly, the Judge arrived at a starting point of 19 months' imprisonment.[13] The Judge applied a discount of 25 per cent for an early guilty plea and a further discount of 25 per cent for the appellant's background, as reflected in the cultural report. The resulting sentence of nine and a half months' imprisonment was commuted to six months' community detention. In addition, the Judge considered a 15 month intensive supervision order would be appropriate to ensure the appellant would follow through on his rehabilitative efforts and receive adequate support as needed.Grounds of appeal[14] M appeals on the grounds that the sentence was manifestly excessive. He does not take issue with the starting point, the uplift for the assault or the discounts applied, but submits that:(a) the uplift of eight months for the driving whilst disqualified charge was in error as the charge carries a maximum penalty of three months' imprisonment;(b) having reached the end point of nine and a half months' imprisonment, the conversion to six months' community detention and 15 months' intensive supervision was excessive; and(c) the Judge erred by not taking into account the time the appellant had spent under restrictive bail conditions.SubmissionsFor the appellant[15] Ms Munro for the appellant submits that the Judge erred by imposing an uplift greater than the maximum sentence for the driving whilst disqualified charge. While the maximum sentence for the offence is three months' imprisonment (or a fine no greater than $4,500 along with a six month driving disqualification period), the Judge uplifted M's sentence by eight months' imprisonment.[16] Ms Munro submits that the offending was low-level without the presence of any aggravating factors. Accordingly, an uplift of one month would have been appropriate.[17] Ms Munro submits that the Judge also erred by failing to consider the time M had spent under restrictive bail conditions, namely being subject to a 24-hour curfew condition for the period between 20 May 2021 and 29 September 2021, at which time the conditions were amended to an overnight curfew that remained in place until 15 February 2022. M's compliance with restrictive bail conditions, although not a mandatory consideration, should be taken into account to mitigate his sentence.[18] Finally, Ms Munro submits that once the driving whilst disqualified charge uplift is amended to an appropriate uplift of one month, the end sentence would become five months' imprisonment. A sentence of six months' community detention would be an excessive conversion of the sentence. Instead, the appellant's sentence should be amended to three months' community detention and 15 months' intensive supervision.For the respondent[19] Ms Mitchell for the respondent submits that while the uplift for the driving whilst disqualified charge was greater than allowed, the overall "mathematics" of the sentence is nonetheless valid because the charge of assault in a family relationship could have carried an uplift greater than the two months' imprisonment imposed. In addition, the respondent submits that the discount for the appellant's personal circumstances was at the higher end of the range and that discount also had the effect of minimising the impact of the Court's acknowledged error in relation to the driving charge.[20] The respondent submits that the end sentence of six months' community detention and 15 months' imprisonment is not manifestly excessive. It is apparent that the Judge carefully considered the appellant's personal circumstances, personal rehabilitative efforts and favourable pre-sentence reports and came to a result which reflected the totality of all three sets of offending. Accordingly, the sentence should stand.Relevant law[21] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.5[22] Generally, the focus in a sentence appeal is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.6The Court of Appeal has accepted, however, that there may be cases where "what has gone wrong as such as to require correction albeit the sentence imposed is within range".7[23] Although s 250 does not refer to "manifestly excessive", it is a principle that is well-established in the Court's approach to determining the extent of the error in sentence appeals.8 As Ellen France J said in Tutakangahau v R: 9The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.[24] In R v Shipton Hammond J said:10It is only if an error of that character is involved that the Court should re- exercise the discretion. If it should come to that, the Court will then form its own view of the appropriate sentence to be passed. If in its own view it "thinks that a different sentence should have been passed", the original sentence will be quashed and a new sentence imposed.[25] That formulation was repeated in Tutakangahau where the Court of Appeal said: 11 "If there is an error of the requisite character, the court will then form its own view of the appropriate sentence."5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.6 Ripia v R [2011] NZCA 101, At [15].7 Tutakangahau v R, above n 5, at [36].8 At [35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].9 Tutakangahau v R, above n 5, at [32].10 R v Shipton, above n 8, at [140].11 Tutakangahahu v R, above n5, at [30].Analysis[26] As acknowledged by the respondent, the charge of driving while disqualified carries a maximum penalty of three months' imprisonment. An uplift of eight months' imprisonment in respect of that charge was therefore plainly a material error.[27] I accept that this driving offending was low-level, with no aggravating features. The appellant cites Police v White12 as a comparable case where a six week uplift was given for a driving while disqualified charge. The defendant in that case faced the additional charges of intimidation and reckless driving for offending motivated by racism which involved verbal abuse, spitting on the victim and narrowly missing driving over the victim. In the context of the total offending, therefore, an uplift of one month is appropriate for the driving while disqualified charge. 13[28] While the respondent acknowledges that the Judge carefully considered the starting point, discounts relating to the appellant's personal circumstances and the uplift for the assault charge, and the overall leniency in the sentence adequately minimises the effect of the error in the driving while disqualified charge uplift. I disagree. There was a material error in the uplift given for the driving while disqualified charge which must be corrected on appeal. The remaining parts of the sentence are appropriate and carefully considered, and therefore, warrant deference. Accordingly, I will not disturb the starting point, discounts or the uplift for the assault charge and deal only with the error. That results in an amended end sentence of five months' imprisonment.[29] I turn now to the question of converting M's sentence to community detention. The appellant and the respondent agree that community detention is the appropriate form of sentence for M in light of the pre-sentence reports.[30] The question that remains is one of length. The appellant's time spent under restrictive bail conditions and his compliance with those conditions is a relevant factor here and I will take it into account.14 To reflect the amended lower end sentence of12 Police v White CRI-2011-042-000804.13 See Hall v Police [2020] NZHC 1613 at [8].14 Lopeti v Police [2015] NZHC 3209, at [21]-[22].five months' imprisonment and the time M has spent subject to restrictive bail conditions, a reduction in the sentence of community detention of three months is warranted. Accordingly, an end sentence of three months' community detention and a period of 15 months' intensive supervision is appropriate.Conclusion[31] The appeal is allowed.[32] A sentence of three months' community detention and a period of 15 months' intensive supervision is substituted.Gwyn J