FREER v NEW ZEALAND POLICE [2019] NZHC 337

FREER v NEW ZEALAND POLICE [2019] NZHC 337 [4 March 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-041[2019] NZHC 337BETWEEN SOUL FREERAppellantAND NEW ZEALAND POLICERespondentHearing: 4 March 2019Appearances: G Vear and V Veikune for AppellantS Teppett for RespondentJudgment: 4 March 2019(ORAL) JUDGMENT OF LANG J[on appeal against sentence][1] Mr Freer pleaded guilty in the District Court to charges of intentional damage,1breaching District Court bail,2 shoplifting,3 resisting arrest4 and assaulting a policeconstable with intent to obstruct him.5[2] On 30 January 2019, Judge Roberts sentenced Mr Freer to eight monthsimprisonment.6 Mr Freer appeals against sentence. He contends the Judge adopted astarting point that was too high, and that he erred in imposing a custodial sentencerather than a lesser sentence in the hierarchy of sentences. He contends the Judgeought to have imposed a sentence of community detention, coupled with a sentence ofintensive supervision. This would enable him to obtain treatment and counselling forseveral underlying issues that are likely to affect his ability to abstain from offendingin the future.The offences[3] The charge of intentional damage arose out of an incident that occurred on3 February 2018. On that occasion Mr Freer was at his home with his partner whenhe opened a window. The wind then caused the window to break. An argumentensued, and Mr Freer responded by breaking two further windows. This causeddamage valued at several hundred dollars.[4] Mr Freer was arrested shortly after this incident, but released on bail. He wasdue to appear in Court on 6 March 2018, but failed to appear and a warrant for hisarrest was issued.[5] On 4 April 2018, Mr Freer drove to a service station with his partner. Hispartner put approximately $100 worth of petrol into the vehicle. Mr Freer then droveoff without making any attempt to pay for the petrol.1 Summary Offences Act 1981, s 11(1)(a).2 Bail Act 2000, s 38.3 Crimes Act 1961, ss 219 & 223(d).4 Summary Offences Act 1981, s 23(a).5 Crimes Act 1961, s 192(2).6 New Zealand Police v Freer [2019] NZDC 1692.[6] The final and most serious charges arise out of an incident that occurred on15 May 2018. On that date passers-by heard a commotion occurring at Mr Freer'saddress. The police were called and entered the address. Mr Freer then walked out ofthe address and ignored their entreaties for him to stop. The police then pursuedMr Freer down the street. They were obliged to tackle him and to subdue him. In theensuing struggle, Mr Freer bit one of the constables on the hand. This left three distinctpuncture marks. Further struggles occurred before he could be finally subdued.During the course of these, Mr Freer endeavoured to bite the same constable in theleg. Fortunately, he was unable to accomplish his object. There was, however, a finalviolent struggle before the police could subdue Mr Freer and lodge him in custody.This led to the charges of assault with intent to obstruct and resisting arrest.The Judge's decision[7] The Judge adopted a starting point of six months imprisonment on the leadcharges of assault with intent to obstruct and resisting arrest. He then added an upliftof two months to reflect the remaining charges. He added a further uplift of twomonths to reflect the fact that Mr Freer has previous convictions for violent offending,two of which have already led to him spending time in prison. From the resultingsentence of ten months imprisonment, the Judge deducted two months, or 20 per cent,to reflect guilty pleas.[8] Turning to the issue of home detention, the Judge had this to say:7[17] My reasons for declining to transpose sentence can be summarised.Any attack on a police officer is to be condemned. Any attack on a policeofficer must be met with a sentence that literally serves to remind others of theconsequence and sheet home the consequences of misbehaviour to theoffender. This was a serious assault, the police officer was bitten.[18] Looking at the time span of all this man's offending, and that is why Iengaged in that recital at the outset. As between February 2018 and May 2018,he exhibits behaviour ill-disciplined, violent and dishonest. He has previouslybeen imprisoned for violence. The Court can have no confidence at all in anysubmission to suggest responsibilities have served to settle him. He hasconvictions for breaching his release conditions. I do not consider thesentencing principles of denunciation and deterrence would otherwiseproperly be met.7 New Zealand Police v Freer, above n 6.Argument on appeal[9] On Mr Freer's behalf, Mr Veikune submits that the Judge selected a startingpoint that was too high on the lead charges. He refers me to Kumar v R.8 In that casethe Judge had adopted a starting point of ten months imprisonment on two charges ofaggravated assault, one charge of breaching a sentence of home detention and onecharge of resisting police. These were laid after two police officers had gone to theappellant's home and endeavoured to speak to him. He resisted them, and a struggleensued. The appellant lunged towards one of the officers and attempted to strike himin the head. He also charged at both constables by lowering his head. He thenendeavoured to take control of a taser device on the belt of one of the constables. Thesentencing Judge had adopted a starting point of ten months imprisonment, but thisCourt held that a starting point of four months imprisonment was appropriate.[10] Mr Veikune submits that the offending in the present case was at approximatelythe same level of culpability of that in Kumar, although he acknowledged that the bitewas more serious than the assaults that occurred in Kumar. He submits, however, thatthe Judge should not have adopted a starting point beyond four months. Mr Veikunedoes not take issue with the uplifts that the Judge applied to reflect the remainingcharges and Mr Freer's previous convictions. He submits, however, that the endsentence ought to have been commuted to one of home detention to reflect severalfactors. These include the fact that Mr Freer has an obvious need for treatment andrehabilitative intervention to deal with issues relating to excessive alcoholconsumption and a tendency to react violently to perceived slights from others. Inaddition, he was diagnosed in 2014 with bipolar disorder. This has resulted in himreceiving a benefit in recent years because it affects his ability to obtain employment.[11] Mr Veikune submits that Mr Freer's rehabilitative needs outweigh the need fora deterrent sentence in this case. He also points out that a sentence of home detentionis in itself a recognised form of deterrent sentence. More importantly, however, hesubmits that a sentence of intensive supervision was necessary here in order to ensureMr Freer received the therapeutic intervention he needs. If that does not occur, he willbe released in three months time without any effective rehabilitative efforts having8 Kumar v Police [2014] NZHC 1659.been undertaken. He points out that the special release conditions imposed by theJudge will only last for six months and contends this will not be sufficient to ensureMr Freer receives the intervention he requires.Decision[12] Having reviewed the authorities relied on by both counsel, I acceptMr Veikune's submission that the starting point of six months imprisonment in thepresent case was outside the available range.[13] I set out below a range of sentences that the courts have imposed on offendingsimilar to that in the present case.9 I consider these demonstrate that a sentence ofaround four months imprisonment was justified on the lead charges. Applying thesame uplifts, however, the end sentence would be one of eight months imprisonment.A discount to reflect guilty pleas would reduce it to around six months imprisonment.[14] The real issue, however, is whether or not the sentence should be altered to oneof home detention to address the concerns Mr Veikune has raised. On reflection, Ithink that it should. I acknowledge the need for deterrent sentences in offending suchas this. Nevertheless, Mr Freer has now served a month in prison and this will nodoubt have had some salutary effect on him. I consider, however, that the interests ofthe community in the present case lie firmly in the favour of further rehabilitativeefforts being undertaken to address the risk that Mr Freer obviously poses. He hasprovided an address that is suitable for an electronically monitored sentence. Itherefore consider that a sentence of community detention, coupled with a lengthysentence of intensive supervision is necessary to address the concerns that are apparentin Mr Freer's case.9 R v Taurere HC Whangarei CRI-2011-488-000030, 7 July 2011 citing at fn 4 Taiapa v R [2011]NZCA 48 (three months for assaulting a Police Officer); R v Chiyabi [2008] NZCA 10 (threemonths for head butting a Police Officer); Cooper v Police HC Auckland CRI 2009-404-261, 9November 2009 (one month imprisonment for kicking an officer in the chest and lower body);Einan v Police HC Hamilton CRI 2005-419-20, 23 February 2005 (seven days' imprisonment forspitting at a Police Officer); Gurney v Police HC Auckland AP116/96, 26 November 1996 (threemonths' periodic detention for kneeing a Police Officer in the groin and two months' periodicdetention for biting a Police Officer's hand); Wall v R [2010] NZCA 494 (12 months' intensivesupervision for spitting at a Police Officer); Rameka v Police HC Whangarei CRI 2010-488-050,3 December 2010 (150 hours' community work for assault Charge, no details given); Waata vPolice HC Nelson AP10/02, 27 June 2002 ($400 fine for pushing a Police Officer).Result[15] The appeal is accordingly allowed, and the sentence of imprisonment isquashed as from tomorrow. In its place, Mr Freer is sentenced to four monthscommunity detention. This reflects the fact that he has already spent one month inprison. In addition, I direct that Mr Freer is to be subject to intensive supervision fora period of 18 months. Both sentences are to be subject to the conditions contained inthe pre-sentence report dated 23 January 2019 under the headings "CommunityDetention" and "Intensive Supervision".[16] The new sentence is to take effect at a time convenient to the prison authoritieson 5 March 2019.Lang JSolicitors:Crown Solicitor, AucklandPublic Defence Service, Auckland