PURAN v NEW ZEALAND POLICE [2016] NZHC 1853

PURAN v NEW ZEALAND POLICE [2016] NZHC 1853 [10 August 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-188[2016] NZHC 1853BETWEEN RAAJIV PURANAppellantAND NEW ZEALAND POLICERespondentHearing: 9 August 2016Appearances: C C Watkins for the AppellantB J Thompson for the RespondentJudgment: 10 August 2016JUDGMENT OF THOMAS J [APPEAL AGAINST SENTENCE]This judgment was delivered by me on 10 August 2016 at 3pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate:.Solicitors/Counsel:Meredith Connell, Auckland.C C Watkins, Auckland.Introduction[1] The appellant, Raajiv Puran, was sentenced in the Auckland District Court toa total of 18 months' imprisonment on charges of Summary Offences Act assault,four charges of driving while either disqualified or suspended (3rd or subsequent),1failing to stop, reckless driving, possession of cannabis and breach of intensive supervision. He was also disqualified from driving for two years.[2] Mr Puran has appealed against his sentence on the grounds it was manifestly excessive given an error in calculation, home detention was not granted, and the Judge failed to give proper weight to Mr Puran's age or his addiction issues.Factual background[3] Mr Puran's offending took place on five separate occasions. The background to the offending was that, on 26 August 2014, Mr Puran was disqualified fromholding or obtaining a drivers' licence for one year and one day on one charge ofdriving while disqualified, 3rd or subsequent.[4] On 4 April 2015, Mr Puran was a passenger in a motor vehicle. When the car was stopped at a red light, Mr Puran exited the car and approached a stationary vehicle in front. He punched the driver in his forehead through a gap in the windowsaying, "what the fuck is wrong with you".[5] On 19 April 2015, Mr Puran was driving while subject to the disqualification. The Police observed him driving at speed and activated red and blue lights to stop the car. The car turned suddenly into a driveway, Mr Puran alighted and ran away before being apprehended by the Police. On arrest he was found in possession of 12 small plastic zip bags containing dried cannabis. Possession of this cannabis was in breach of the conditions of a sentence of intensive supervision Mr Puran was serving at the time.1 Two of the convictions appear to be in respect of driving while suspended (3rd or subsequent). However, the facts of the offending confirm that the charges should have been laid as driving while disqualified (3rd or subsequent). The Police had filed an application to amend the charging documents. It appears this was never dealt with.[6] On 22 July 2015, Mr Puran was driving a motor vehicle while disqualified and was stopped at a Police checkpoint.[7] On 27 July 2015, Mr Puran was seen driving a motor vehicle while disqualified. Police stopped the vehicle and Mr Puran tried to change seats, subsequently contending he was not the driver.[8] On 31 August 2015, Mr Puran was driving a motor vehicle when the Police had cause to speak to him and activated flashing red and blue lights and a siren. Mr Puran accelerated away, entered a roundabout at speed, turned into a shopping centre carpark, drove through the carpark at speed before exiting through the carpark entrance at a time when the roads were wet and a number of members of the public were present. He eventually came to a stop.Conviction history[9] Mr Puran's conviction history discloses similar previous offending. He hasfive prior convictions for driving while disqualified, one for failing to stop after an accident involving injury, one for failing to stop when followed by red and blue flashing lights, one for possession of cannabis for supply, one for assault, one for aggravated robbery, two for robbery and one for theft. In 2013 he was sentenced on a number of charges to home detention, community work and disqualification from driving. In 2014 he was sentenced on a number of charges to six months community detention, one year intensive supervision and disqualification from driving.Pre-sentence report[10] The pre-sentence report noted that several of the offences for sentence were committed while Mr Puran was subject to a sentence of intensive supervision. His offending was described as showing a lack of regard for Court imposed sanctions and a lack of motivation to stop offending behaviour. His likelihood of complying with a community based sentenced was assessed as medium. He was assessed as being at medium risk of harm to others.[11] Mr Puran's drug use was assessed as high risk, given his use ofmethamphetamine, cannabis and synthetic cannabis. The report writer considered he would benefit from an assessment with a residential drug abuse treatment provider. The possibility of an electronically monitored sentence was canvassed, although the position as to a suitable address was somewhat unclear.[12] The report writer noted that, given Mr Puran's lack of regard for Court imposed sanctions, frequency of offending and offence type, lack of remorse and consideration for victims, a restrictive sentence such as imprisonment might be considered appropriate. However, the report writer recommended a further remand for an application for Mr Puran to attend a residential rehabilitative programme commenting that, while he had demonstrated some motivation to address drug use, the level of treatment he was willing to undertake was unable to be ascertained.[13] The pre-sentence report noted relatively positive comments from a previous employer who expressed a potential willingness to reemploy Mr Puran if he had avalid driver's licence, had attended treatment programmes, and displayed "more pro-social behaviour".District Court decision[14] The District Court Judge canvassed the facts of the offending and Mr Puran'scriminal history. He noted that many of the charges in respect of which Mr Puran appeared for sentence were committed while subject to a sentence of intensive supervision and his engagement with community probation had been described as limited. He noted Mr Puran had received numerous warnings for compliance with his earlier sentences of home detention and community detention. There were a number of pre-sentence reports before the Judge, which he addressed.[15] The Judge was of the opinion that Mr Puran had been given ample opportunity to address his issues. He declined to adjourn sentencing any further, as he considered that home detention would not be available. While the issue of residential rehabilitation had been suggested, the Judge noted that, in Auckland, that option usually required resolution of all matters. At the time of sentencing Mr Puranhad pleaded not guilty to other charges including driving with excess breath alcohol, and dangerous driving causing injury.[16] The Judge referred to the fact he was sentencing Mr Puran for his sixth, seventh, eighth and ninth charges of driving while disqualified, concluding that hisbehaviour was "blatantly defiant and repetitive". He identified the offending on31 August 2015 as the most significant. At this point, there was some confusion asto the Judge's approach. He adopted a starting point of 10 months' imprisonmentwhich shortly thereafter, was described as being 12 months' imprisonment. Thestarting point was then increased to 18 months, and it appears, uplifted by a further six months before being reduced by six months, presumably in respect of the guilty plea.[17] In respect of home detention, the Judge said:Home detention I will not and would not have allowed. My reasons are these. First, the offending is serious. Two, you thus far have not been deterred. For the moment you remain a menace and whether or not you are drug addicted is of little or no consequence. You have no remorse and there is no indication at all that you are earnestly committed to change. You have outstanding matters too. While there are dependency issues I do not see that they can afford you any further indulgence.Submissions[18] Ms Watkins for Mr Puran submitted that the Judge erred in his calculations,referring to "an unexplained leap" from 12 months to 18 months. She submitted thatthe sentencing Judge made an error and prior convictions were twice added to the starting point.[19] In Ms Watkins' submission, the Judge did not properly consider Mr Puran'sexpressed desire for drug rehabilitation, or the recommendation in the pre-sentence report to adjourn sentencing to enable an electronically monitored sentence at a residential drug treatment facility to be considered. She referred to the letter Mr Puran wrote to the sentencing Judge expressing a desire to address his drug addiction.[20] Ms Watkins also submitted that the Judge failed to give proper weight to Mr Puran's age, given both the impact of imprisonment on young people and the scientific evidence on adolescent brain development.[21] Finally, in Ms Watkins' submission, the Judge failed properly to consider thepossibility of an electronically monitored sentence.[22] In the Crown's submission, the end sentence of 18 months' imprisonment waswithin the available range and was not wholly out of proportion to the gravity of the overall offending. The Judge properly considered that the protection of thecommunity, and Mr Puran's attitude and behaviour meant an electronically monitored sentence was inappropriate.Appeal against sentence[23] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow the appeal if satisfied that:[24] for any reason, there is an error in the sentence imposed on conviction; and[25] a different sentence should be imposed.[26] In any other case, the Court must dismiss the appeal.2[27] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.3 Further, despite s 250 making no expressreference to "manifestly excessive", this principle is "well-engrained" in the court'sapproach to sentence appeals.42 Criminal Procedure Act 2011, s 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].4 At [33], [35].[28] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:5[29] There must be an error vitiating the lower Court's original sentencing discretion: the appeal must proceed on an "error principle."[30] To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.[31] It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.[32] The High Court will not intervene where the sentence is within the range which can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.6Analysis[33] It is fair to observe that the way in which the Judge constructed the sentence was somewhat confusing, as can happen on occasion where there are a myriad of charges. In the circumstances, rather than analyse the steps taken by the Judge, the appropriate course is for me to approach the matter afresh to ascertain whether the sentence was manifestly excessive.[34] I take the charge of driving while disqualified (3rd or subsequent) committed on 31 August 2015 as the lead offence. In many ways the offending on 31 August 2015 can be considered the culmination of the events and offending for which Mr Puran was being sentenced, starting in April 2015.[35] The aggravating factors of the driving while disqualified offence on 31 August 2015 were:5 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].6 Ripia v R [2011] NZCA 101 at [15].[36] This was Mr Puran's ninth conviction for driving whiledisqualified in just over three years;[37] The driving offending was exacerbated by Mr Puran failing to stop for the Police when they activated their flashing red and blue lights and siren, accelerating away and driving at speed in a reckless way in the circumstances;[38] The offending occurred five days after the end of a sentence of intensive supervision imposed on Mr Puran for, inter alia, driving while disqualified;[39] Mr Puran was, at the time, on bail for driving while disqualified in connection with the offending on 19 April 2015, having pleaded guilty and awaiting sentence;[40] Mr Puran was at the time facing two further active charges of driving while disqualified (3rd or subsequent) committed within the period of six weeks prior to 31 August 2015 while still on his sentence of intensive supervision. In respect of one of those charges, he had attempted to change seats to avoid detection as a disqualified driver.[41] Given all those aggravating factors, in my assessment, an appropriate startingpoint was 20 months' imprisonment. That assessment necessarily includes thecharges of failing to stop and reckless driving committed at the same time.[42] The starting point also effectively includes his other driving charges as they are seen as aggravating factors of the offending on 31 August 2015. Sentences on those charges would therefore be concurrent.[43] There are two discrete charges for which an uplift to the starting point was warranted. The first was the Summary Offences Act assault, in respect of which an uplift two months was justified. The second was a breach of the sentence ofintensive supervision relating to the cannabis found on Mr Puran when he ran from the Police on 19 April 2015. In respect of this charge, a further two months wouldbe added to the starting point. That brings the global starting point to 24 months'imprisonment.[44] The sentencing Judge was criticised for failing to discount for Mr Puran'syouth and failing to give proper consideration to his addiction difficulties. Although Mr Puran was 20 years old at the time of sentence, the offending took place when he was aged 19 and 20.[45] While the age of the offender is a mitigating factor the Court must take into account at sentencing,7 there is no presumption in favour of a discount for youth. An assessment must be made of all the circumstances of the case.8[46] Discounts for youth are given because of age-related neurological differences between adults and young people (particularly where the offending is impulsive), to avoid the crushing effect of long sentences on young people and because of their greater capacity for rehabilitation.9 However, the objective seriousness of the offending is also relevant.10[47] A discount for youth is often warranted where an offender demonstrates real prospects of rehabilitation and motivation to change. The question of a discount for youth was not specifically referred to by the sentencing Judge and I am not clearwhether one was requested in defence counsel's submissions on sentence. In any event, despite what can be considered a rather self serving letter written by Mr Puran for the purposes of sentencing, he does not appear to be at the stage where he is demonstrating real motivation to change. He has already had the benefit of a sentence of intensive supervision and it is clear there is considerable work yet to be done.7 Sentencing Act s 9(2)(a).8 Huata v R [2013] NZCA 470 at [32].9 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].10 Huata v R, above n 9, at [33]; Tahiri v R [2013] NZCA 73 at [27].[48] However, Mr Puran obviously has real issues with impulse control and his youth is no doubt a major contributing factor to that. There could have been a small discount given, in the circumstances, and for the purposes of an appeal I will put that at five per cent, being one month.[49] Despite Mr Puran's letter, I am not satisfied that he was entitled to any creditfor remorse.[50] In the circumstances of the offending, Mr Puran's criminal history and thepre-sentence reports, I am not satisfied Mr Puran was entitled to any discount in respect of addiction issues. The Judge, in my assessment, showed awareness of Mr Puran's issues in the release conditions he imposed which dealt, not only with alcohol and drug counselling, but also a requirement for Mr Puran to undergo a psychological assessment.[51] Allowing Mr Puran full credit for a guilty plea and including the youth discount which, as I say, is being generous to Mr Puran, the end sentence would be17 months' imprisonment. Standing back and assessing the totality of the offending,I am satisfied that is appropriate.[52] In the circumstances, the sentence of 18 months' imprisonment imposedcannot be considered manifestly excessive.Home detention[53] There is no presumption that either imprisonment or home detention is to bepreferred: the matter is one for the judge's discretion.11 In Bregmen v Police, Brewer J summarised:12[19] The sentencing judge must have regard to the need to assist in the offender's rehabilitation and reintegration into the community, the principle that the Court should impose the least restrictive outcome appropriate in the circumstances, and the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community. Rehabilitative considerations are important in determining11 Manikpersadh v R [2011] NZCA 452; James v R [2010] NZCA 206, (2010) 24 NZTC 24,271, at [17].12 Bregmen v Police HC Gisborne CRI-2011-416-000004, 5 April 2011.whether to sentence to home detention. Even in cases where there is a presumption of imprisonment, such as arises under the Misuse of Drugs Act 1975, it can be appropriate to give significant weight to the prospects of rehabilitation.[20] Balanced against these considerations, the Court must ensure that the purposes of denunciation and deterrence are met. When dealing with serious offending, imprisonment may be necessary to reflect adequately the need to denounce the offender's actions and to deter others. This will often be the case for offences of driving whilst intoxicated causing serious injury or death. Drink-driving is a widespread problem in New Zealand. It is not to be treated lightly.[54] In Manikpersadh v R, the Supreme Court approved the statement, "the choicebetween home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals tothis Court, on the identification of error, if any, in the court below".13[55] The Judge expressly considered whether home detention would be an appropriate sentence. He concluded it would not in all circumstances. His reasons referred to the seriousness of the offending, the fact community-based sentences had not deterred Mr Puran to date, that he did not accept Mr Puran showed any remorse, and there was no indication he was earnestly committed to change.[56] The Judge had observed, when addressing one of the earlier pre-sentence reports which recommended community detention and supervision, that, in the ordinary course, there might have been an expectation of such a sentence, had Mr Puran "stepped back from further offending". The Judge, therefore, showed thathe was open to such a sentence but it was inappropriate, in all the circumstances.[57] Furthermore, Mr Puran was still facing other charges. Indeed it seems that Mr Puran's outstanding charges have still not been resolved. At the time of sentencing, he had a number of outstanding driving charges to which he had pleaded not guilty. The Judge correctly assessed the position when he noted that the option of residential rehabilitation usually requires resolution on all matters.[58] Mr Puran has already received the full range of community based sentences for his similar offending: a fine; community work; home detention; community13 Manikpersadh v R, above n 12, at [12]. .detention and intensive supervision. In the circumstances it cannot be said that theJudge's decision, not to impose home detention, was either unreasoned, unreasonableor made in error.Result[59] For the reasons given, the appeal is dismissed._______________________Thomas J