MERRILL v NEW ZEALAND POLICE [2016] NZHC 2140

MERRILL v NEW ZEALAND POLICE [2016] NZHC 2140 [9 September 2016]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCRI-2016-488-31[2016] NZHC 2140BETWEEN SAVANNAH SERENE MERRILLAppellantAND NEW ZEALAND POLICERespondentHearing: 7 September 2016Appearances: D W Hart for the AppellantJ W Wall for the RespondentJudgment: 9 September 2016JUDGMENT OF MUIR J (SENTENCE APPEAL)This judgment was delivered by me on Friday 9 September 2016 at 3.30 pmPursuant to Rule 11.5 of the High court Rules.Registrar/Deputy RegistrarDate:Counsel/Solicitors:D W Hart, Barrister, WhangareiJ W Wall, Crown Solicitor, WhangareiIntroduction[1] Ms Merrill appeals from a sentence of seven months' home detention imposed in relation to two charges of assault with intent to injure, one charge of assault and one charge of assault on a police officer acting in the execution of her duty, all of which charges were the subject of guilty pleas.[2] The charges arose out of two separate incidents.[3] On 30 August 2015 Ms Merrill entered the hotel Motueka with male associates. She was carrying a bottle of beer (described by her counsel as a"stubbie") and walked through the main entrance to the bathroom area. Meanwhile her associates were approached by the bar manager who requested them to leave because she did not consider them old enough to be in an unsupervised bar. At that stage Ms Merrill walked out of the bathroom area. The manager requested that she hand over the bottle in her hand. Ms Merrill refused to do so and emptied the contents of it over the victim's head. Having done that she pushed the victim withone hand hitting her in the chest and face and then hit her on the top of the head with the empty bottle. At that point one of her associates walked up behind the victim, grabbing her by the hair and forcing her to the ground at which point Ms Merrill kicked the victim in the legs.[4] The victim received a lump to her head, a cut to her nose and slight bruising to her face. The (amended) charge faced in respect of the offending was assault with intent to injure.[5] Three weeks later, and while on bail for this offending, Ms Merrill was involved in a further incident with her father and one of her father's associates at herfather's home where she was living. She had returned from work at approximately 5 pm. Her father and others at the address had been drinking and were intoxicated. Ms Merrill became frustrated and angry at the behaviour of the victims and began throwing household items at them and breaking other items on the floor.[6] One such projectile was thrown at her father causing a laceration of approximately five cm in length on the right side of his head. A saucepan was thrown at another occupant causing bruising to his forehead.[7] Ms Merrill was arrested as she attempted to leave the address and in theprocess spat at the arresting officer. The spittle landed in the officer's eye.[8] The lead charge in relation to the incidents was again assault with intent to injure.The District Court's decision[9] Having reviewed the facts in detail, the District Court identified the assault on 30 August 2015 as the lead offending and then proceeded to benchmark that against the decision of Tamihana v R,1 concluding that the offending was more serious than in that case, principally on account of Ms Merrill's use of a weapon.[10] In referring to the Tamihana decision the District Court Judge said:Mr Tamihana went to jail for a year, he got credit for a plea and about four months were knocked off the sentence and the Judge started it at about 16months' jail.[11] In fact, the starting point recognised by the Court of Appeal was 12 months'imprisonment which was uplifted by three months to allow for previous convictionsresulting in a sentence of 15 months' imprisonment, subsequently discounted torecognise guilty pleas.[12] Having identified the offending as more serious than in Tamihana, the Courtadopted a starting point of 18 months' imprisonment which was then uplifted by 12 months in respect of the subsequent offending which the Judge thought was"probably less serious".[13] He then adopted discounts of 33 per cent on account of Ms Merrill's youthand rehabilitation prospects taking the end sentence to one of 20 months'1 Tamihana v R [2015] NZCA 169.imprisonment from which a 25 per cent discount was allowed for Ms Merrill's guiltyplea. That resulted in a sentence of 15 months' imprisonment which the Judge then commuted to home detention on the basis that this would best serve Ms Merrill'srehabilitation prospects. Although noting that, ordinarily, the home detention sentence would be for half of the period of imprisonment otherwise imposed, thefinal sentence was set at seven months' home detention (in effect a further seven per cent deduction).Leave to appeal[14] The notice to appeal was filed out of time by four days. Mr Hart advises that he was undertaking a long cause fixture when the instruction to file the notice was received and that he did so as soon as was practically possible.[15] The Crown describes the circumstances as "explicable" and does not opposethe grant of leave. Leave to appeal out of time is accordingly granted and the formaltime for appealing is extended to today's date.Submissions[16] For Ms Merrill, Mr Hart submits that the starting point in relation to the 30 August offending was too high having regard to the bands set out in Nuku v R2 and a number of broadly analogous cases to which he referred including Tamihana3 and the cases referred to in it and the recent High Court decision in Edmondson v Police.4 He submitted a more appropriate starting point was 12 months'imprisonment.[17] In respect of the subsequent offending, counsel noted in his writtensubmissions "concern at the extent of the uplift applied, given the starting point already identified by the Court". However, in oral submissions Mr Hart responsibly acknowledged that if the starting point for the earlier offending was 12 months only, an uplift in the same amount could not seriously be challenged on appeal.2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.3 Tamihana v R, above n 1.4 Edmondson v Police [2015] NZHC 3184.[18] No challenge was made to the various deductions made for youth, rehabilitation and guilty plea with the result that the focus of the appeal fell to the starting point adopted for the 30 August offending.[19] For the Crown, Mr Wall conceded that such starting point was excessive and that a sentence of 12 months imprisonment would have been more appropriate. However, he said that the subsequent offending was in fact more serious, could have been identified as the lead offending and justified a sentence of 18 months'imprisonment rather than the 12 months adopted by the District Court. That submission was made with particular reference to the Court of Appeal's decision inNuku v R5 and the fact that weapons were involved and a significant injury was sustained.[20] In the result, Mr Wall submitted that although the Judge erred in his approach to fixing the starting point for the 30 August incident, the Judge's overall starting point of 30 months imprisonment was appropriate to reflect the totality of the offending. He then submitted that, if anything, the credits given for mitigating factors were generous and that the end sentence could never be described as manifestly excessive.Approach to appeal[21] The approach to an appeal such as this is well settled. Section 250(2) of the Criminal Procedure Act 2011 states the Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and that a different sentence should be imposed. In any other case the Court must dismiss the appeal. The Court of Appeal has recently confirmed this was not intended to change the previous approach of the Courts under the Summary Proceedings Act 1957.6[22] The Court will not interfere if the sentence is within the range and can be justified by sentencing principles. However, if the sentence is manifestly excessive the Court will intervene. Significantly, if the end sentence is not manifestly5 Nuku v R above n 2.6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26] – [27].excessive, then even if there are errors in the process by which the sentence was reached, the appeal will not be allowed.7Analysis[23] In respect of the first offending the relevant charge was under s 193 of the Crimes Act 1961 – assault with intent to injure – for which the maximum available term of imprisonment is three years. There is no tariff decision in respect of such charge.[24] In Nuku v R8 the Court of Appeal provided guidance in respect of offending under s 188(2) (wounding with intent to injure – maximum term of imprisonment seven years), s 189(2) (injury with intent to injure – maximum term of imprisonment five years) and s 191(2) (aggravated wounding or injuring with intent – maximum term of imprisonment seven years). That case established three bands of offending namely:Band 1 where there are few aggravating features, the level of violence is relevantly low and the sentencing judge considers the offender's culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.Band 2 a starting point of up to three years imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.9Band 3 a starting point of two years up to the statutory maximum (either five or seven years depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level or prolonged7 Elizalde v Police [2015] NZHC 959 at [9].8 Nuku v R above n 29 R v Taueki [2005] 3 NZLR 372 (CA).violence is an aggravating factor of such gravity that it will generally require a starting point within Band 3 even if there are few other aggravating features.[25] Despite the fact that, in their terms, they apply to the more serious offending identified in s 188(2), s 189(2) and s 191(2), the Nuku Bands have subsequently been adopted for guidance purposes in relation to charges under s 193.10 However, some allowance is appropriate for the longer periods of imprisonment associated with offending of the type identified in Nuku.[26] In respect of the aggravating factors identified in Taueki and imported into the Nuku analysis, the following apply to Ms Merrill's offending on 30 August 2015.(a) She acted in concert with others, the victim having been faced with two attackers.(b) The assault was with a weapon (a bottle).(c) The assault was to the victim's head.(d) The second assault (a kick) was administered to the victim when she was on the ground and vulnerable.[27] The sentencing judge was correct to identify each of these as aggravating factors. However, as Asher J pointed out in Elizalde v Police:11 It was also necessary to evaluate the seriousness of those factors. A veryserious aggravating factor can lift the offending into a higher band, whereas if the aggravating factors are in a mild form the result may be that a lower band is appropriate. The seriousness will affect also the position of an offence within a band.[28] The most seriously aggravating feature of the 30 August offending was that a bottle was used in the assault.10 Tamihana v R, above n 1.11 Elizalde v Police, above n 7, at [16].[29] However, Ms Merrill was of relatively slight build, the blow was administered with insufficient force to break the bottle, it did not knock the victim to the ground or cause unconsciousness, nor any fracture to the skin. The resultinginjury was said to be a "lump" only.[30] I agree with both the appellant and the Crown that a starting point of 18 months imprisonment was too high in that context. Although I accept the use of a weapon was an additional aggravating feature to that in Tamihana12 (the other aggravating features being broadly equivalent) the kick administered to the head in that case was one described as having occurred after Mr Tamihana, an adult male,"ran" up to the victim. It can be expected to have been delivered with considerable force. In respect of the 30 August offending the totality of the aggravating features could not in my view be said to warrant a starting point 50 per cent higher than the 12 months that was adopted in Tamihana.13 To the extent use of a weapon made the offending more serious this was only marginally so given the matters I refer to in [28] above. The additional aggravating factor was in that sense comparatively"mild" to use the word adopted by Asher J in Elizalde.14[31] I am reinforced in that view by the Court of Appeal's decision in Hurinui v R.15 That case involved a charge under s 202C of the Crimes Act (assault with a weapon) where the maximum penalty is again five years. The facts were that the victim was hit on the head by a baseball bat wielded by Ms Hurinui. The blowcaused a split to the victim's forehead requiring 15 stitches. The victim suffereddiscomfort and headaches for an extended period thereafter. The Court upheld the District Court's starting point of 18 months' imprisonment in the circumstances ofwhat it called an unprovoked assault to the head using a "heavy weapon" and resulting in "serious injuries". On any analysis the offending was significantly moreserious than in the present case.12 Tamihana v R above n 1.13 Tamihana v R above n 1.14 Elizalde v Police, above n 7.15 Hurinui v R [2014] NZCA 290.[32] Likewise in Edmondson v Police16 where the High Court reduced the DistrictCourt's starting point of 18 months' imprisonment to 14 months' imprisonment, theoffending can again be described as more serious than that which occurred on 30 August (reflected in the charge of assault with a weapon faced by the defendant in that case). The facts were that the male defendant elbowed the female victim in the right eye with some force, bent her fingers backwards and then stabbed her in the lip with a large carving fork.[33] Having regard to these and the cases collected in Tamihana the correctstarting point was, in my view, 13 months' imprisonment.[34] However, I agree with the Crown that the sentence of 12 months imposed by the Judge in respect of the subsequent assault on Ms Merrill's father and associatewas unduly generous and that this could, in fact, have been described as the lead offending given that it involved both use of a weapon and much more significant injury (being a five cm laceration to the victim's head from the projectile Ms Merrill threw at him, evidently with some force). Relevant also to sentencing on that charge was the fact that the offending was committed while on bail for the earlier offending. I accept that a sentence of at least 15 months' imprisonment would have beenappropriate for the subsequent offending.[35] I am left in a position therefore where, although I agree that the starting point for the August offending was excessive, on the overall assessment of criminality which I am required to undertake17 I consider a combined starting point ofapproximately 28 months' imprisonment was justified against the marginally higher 30 months recognised by the Judge.[36] If I then adopt what the Crown, in my view fairly calls the District Court's "generous" 33 per cent discount for youth and rehabilitation and the further 25 percent discount for guilty plea I am left with an end sentence of 14 months'imprisonment which, on the standard formula applied, would commute to sevenmonths' home detention – that is the sentence actually imposed.16 Edmondson v Police, above n 4.17 R v Xie [2007] 2 NZLR 240 at [16] to [18].[37] Even adopting the appellant's submission that both sets of offending warranted starting points of 12 months' imprisonment, then having regard to the same discounts and calculations the final point arrived at would be six months' homedetention. Had I been persuaded by that submission (which I am not) I would nothave considered the difference between six months' home detention and the sevenmonths imposed to be in the manifestly excessive category necessary to invoke the s 250(2) jurisdiction.[38] This is therefore a case where, although in my view there were errors in the process by which the sentence was reached, the end sentence was not such asjustifies the Court's intervention. The appeal endeavours to "cherry pick" errors in the decision without reference to the overall result which could, in my assessment, never be described as manifestly excessive.Result[39] I dismiss the appeal but wish Ms Merrill well as she puts behind her this chapter in her life.__________________________Muir J