JEFFERIES v NEW ZEALAND POLICE [2019] NZHC 2702

JEFFERIES v NEW ZEALAND POLICE [2019] NZHC 2702 [22 October 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-000106[2019] NZHC 2702BETWEEN SHANNON LEE JEFFERIESAppellantAND NEW ZEALAND POLICERespondentHearing: 10 October 2019Appearances: M Barrell for AppellantS Dayal for RespondentJudgment: 22 October 2019JUDGMENT OF DUNNINGHAM JIntroduction[1] The appellant, Shannon Jefferies, pleaded guilty to a charge of commonassault. He was sentenced to six months' imprisonment on 15 July 2019 byJudge Garland.1 The appellant appeals that sentence on the basis it was manifestlyexcessive.Facts[2] The appellant was in a relationship with the victim for about two months. Hebecame concerned about whether she was being faithful to him and he arranged for afemale associate to meet the victim at the appellant's home and assault her. He pickedthe victim up from her home address and drove her to his address. When they arrivedthey were approached by the female associate, who grabbed the victim by the hair and1 Police v Jeffries [2019] NZDC 13717.pulled her out of the vehicle while throwing punches at her head. The victim wasdragged into the appellant's home, where the assault continued. The associate threwseveral more punches with both hands directed at the victim's head and face,connecting multiple times. The appellant stood by and watched the assault, makingno effort to stop it.[3] The victim received swelling to the back of her head and face and two blackeyes.Principles on appeal[4] 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 that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".3 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.4District Court decision[5] Judge Garland considered the appellant's history of violence, includingconvictions for wounding with intent to cause grievous bodily harm, male assaultsfemale, common assault and assault with intent to injure for which he was sentencedto imprisonment for eight years and six months. He noted that as a consequence ofthe assault, the appellant had now been recalled to prison for the charges he wassentenced to in 2012.2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].[6] Judge Garland adopted a starting point of eight months. He then allowed atwo month credit for the appellant's guilty plea, resulting in an end sentence ofsix months' imprisonment.Victim Impact Statement[7] In the course of reviewing the file in advance of hearing the appeal, I becameaware that the Judge had relied on an unrelated victim impact statement. Enquirieswere made and it appeared a victim impact statement had not been prepared beforesentencing in the District Court. However, shortly after the appeal was heard, advicewas received that a victim impact statement had been prepared on 9 October 2019. Asa consequence, I advised counsel that once they had received the victim impactstatement I would receive written submissions on the victim impact statement and itsrelevance to the appeal, if any.SubmissionsAppellant's submissions[8] Ms Barrell, for the appellant, submits that the starting point of eight monthswas manifestly excessive given the appellant was only a party to the offending and notthe primary offender. She says the Court should have taken this lowered culpabilityinto account. Ms Barrell cites Te Rangi v R, in which the Court of Appeal lowered asentence for using a firearm from three years to one year and four months inrecognition of the appellant's "secondary role".5 Ms Barrell submits that the appellantshould have received a similar reduction.[9] Ms Barrell also submits the Judge failed to take into account the period of justover three months the appellant will spend in prison on recall for previous offending,in addition to the six months imposed. She cites a number of cases in which the courtshave allowed discounts for time spent on recall.6 Ms Barrell submits that withoutsome discount for time spent on recall, the appellant is effectively subject to a5 Te Rangi v R [2011] NZCA 363 at [14].6 R v Paul CA409/05, 26 April 2006; R v Repia CA12/95, 26 May 1995; Tukuafu v R [2015] NZCA251; Faulkner v R [2016] NZCA 315.manifestly excessive sentence of nine and a half months' imprisonment for thisoffending.[10] In relation to the victim impact statement, Ms Barrell submits that it is "freshevidence" and this Court should only have regard to it if it is "necessary or expedientin the interests of justice" to do so.7 In this case, Ms Barrell submits it is not necessaryor expedient in the interests of justice to have regard to this evidence. The injuries thecomplainant received were already taken into account by the Court as they wererecorded in the summary of facts. Furthermore, the victim impact statementexaggerated the injuries. For example, there was no reference in the summary of factsprepared after police obtained the medical records, to her having a jaw out of line.[11] There is also highly prejudicial material in the victim impact statement whichdoes not form part of the case against the appellant. For example, there is referencein the victim impact statement to a firearm being involved, which is strongly deniedby the appellant and is not part of the case against him.Respondent's submissions[12] Ms Dayal for the respondent submits that the sentence imposed was withinrange. She notes the present offending was aggravated by being domestic violenceand involving a significant breach of trust. It also involved the aggravating featuresof an attack to the victim's head and face and having an element of vigilantism to theassault.[13] Ms Dayal points out that there were also aggravating features relevant to theappellant. He has a history of violent offending and was subject to parole when theoffending occurred.[14] In respect of the second ground of appeal, Ms Dayal accepts that the time spenton recall can be taken into account in fixing the length of the new sentence ofimprisonment in order to avoid an element of double-counting.8 However, the Courtmust also take into account, as an aggravating factor, the fact that the offending7 Criminal Procedure Act 2011, s 335.8 Tukuafu v R, above n 6.occurred while the appellant was subject to sentence. In Oliver v R, the Court heldthat the allowance for time spent on recall is not required to exactly equal the timespent in custody.9 Furthermore, the adjustment for the fact that the offending occurredwhile subject to a sentence would, to some extent at least, cancel that allowance out.[15] Thus, while Ms Dayal accepts that some credit could be given for the periodof just over three months served on recall, that would be at least partially negated byan uplift to reflect the fact of the offending on parole.[16] In respect of the victim impact statement, Ms Dayal simply notes that policeobtained the victim impact statement "mistakenly thinking it was required for thesentence appeal" and she submits that the statement emphasises the seriousness of theassault.[17] In short, the overall consideration for the Court is whether the six monthsimposed by the Judge was within range, and the respondent submits that it was.Analysis[18] I do not accept that the fact the appellant was a party to the offending ratherthan the person who actually assaulted the victim means the starting point wasmanifestly excessive. This was a serious assault which involved premeditation, anattack to the head, and resulted in injury to the victim.[19] In my view, it is difficult to see the appellant as less culpable simply becausehe was not the physical attacker. He played a significant part in the assault as hearranged for it to take place, he brought the victim to the place where she would beassaulted, and he then stood by and watched the assault take place. Culpability is notsolely dependent on how active a role was played in the physical assault. In Nikua vR the Court accepted that the party who organised the assault of the victim was "themost culpable" given her planning, pre-meditation, position of authority and breach oftrust.109 Oliver v R [2014] NZCA 285.10 Nikua v R [2016] NZHC 2202.[20] In my view, the starting point adopted by Judge Garland of eight months wasat the lower end of available sentences for the severity of attack involved. By analogywith other cases, a starting point of at least 10 months would be appropriate for theprincipal offender.11 Furthermore, it appears that the starting point took into accountthe appellant's history of violent offending, as the Judge gave no discrete uplift forthat factor. That too, reinforces the fact that the starting point was lenient.[21] I accept the victim impact statement is, in effect, fresh evidence and I considerit is in the interests of justice to admit it because, through an oversight, it was notavailable at the original sentencing. However, I also accept that there are aspects ofthe victim impact statement which should not be taken into account. For example,allegations about the circumstances of the offending, including the involvement of afirearm, which are not reflected in the summary of facts or the charge before the Court,cannot be relevant to sentencing, particularly when they are strongly denied.[22] The victim impact statement supports the fact that the assault was serious andresulted in the need for medical attention. However, the Judge was already aware ofthis from the summary of facts and I do not consider that the victim impact statementwhich is now available warrants an amendment to the sentence, whether to increaseor decrease it.[23] In terms of whether there should have been a discount for time spent on recall,the Court of Appeal in Faulkner v R summarised the approach to sentencing where theoffender has been subject to a recall order, saying:12[16] Under s 91(5) of the Parole Act 2002, pre-sentence detention is notautomatically deducted [by Corrections] from the length of time to be servedon a sentence of imprisonment if the offender was, during that detention, incustody and serving a sentence of imprisonment. Serving a sentence ofimprisonment includes time spent in prison following an application for arecall order, but only if a final recall order is made.13[17] The general approach is that, where an offender would have beeneligible for parole under the prior sentence of imprisonment in the absence ofthe remand in custody on the new charge/s or where an application for recall11 Borell v Police [2014] NZHC 2422; Tangimataiti v Police [2018] NZHC 2291; Sadlier v Police[2018] NZHC 993; and Williams v Police [2015] NZHC 3285.12 Faulkner v R, above n 6.13 Parole Act 2002, s 91(6).is based on the new charge/s, the time spent on remand can be taken intoaccount in fixing the length of the new sentence of imprisonment so as to avoidan element of double punishment.14 [24] However, as Ms Dayal submitted, it will not usually be appropriate to discountthe sentence by the total period the appellant spent in custody subject to recall. Forexample, in Tukuafu v R, the Court said that would "ignore that the present offendingoccurred while Mr Tukuafu was on parole and subject to release conditions".15[25] Ms Barrell advised that the appellant has spent approximately three monthsand one week in custody subject to recall. In my view, at best, he could have receiveda net discount of around one month from the sentence for this offending to reflect boththe time spent in custody on recall and the fact the offending occurred while on parole.However, Faulkner states that a discount will only be necessary where the total periodserved would be out of all proportion to the gravity of the offending.16 I do notconsider this is such a case. As I have pointed out, the starting point adopted byJudge Garland was lenient in light of the seriousness of the appellant's offending andhis history of violent convictions. He was given the maximum discount for his guiltyplea. In all the circumstances, it would have been open to the Judge to impose aslightly higher sentence than six months' imprisonment and it is therefore unnecessaryto allow a discrete discount for the time spent in custody subject to a recall.[26] In these circumstances, I am satisfied that the sentence of six months was notmanifestly excessive, and the appeal is dismissed.Solicitors:Michelle Barrell & Associates, ChristchurchRaymond Donnelly & Co., Christchurch14 Tukuafu v R, above n 6, at [12]-[13].15 Tukuafu v R, above n 6, at [13].16 Faulkner v R, above n 6, at [23].