ELISAIA v NEW ZEALAND POLICE [2017] NZHC 2418

ELISAIA v NEW ZEALAND POLICE [2017] NZHC 2418 [3 October 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-268[2017] NZHC 2418BETWEEN WADE ELISAIAAppellantAND NEW ZEALAND POLICERespondentHearing: 2 October 2017Appearances: B Meyer for AppellantD S Houghton for RespondentJudgment: 3 October 2017JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by me on 3 October 2017 at 4 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr Elisaia pleaded guilty in the District Court to ten charges. These comprisedreceiving (x 2), dangerous driving, failing to stop, resisting a constable, driving whilstsuspended, being in possession of an offensive weapon, theft of petrol and possessionof cannabis. On 14 July 2017, Judge Wharepouri sentenced Mr Elisaia to 22 monthsimprisonment on those charges.1[2] Mr Elisaia came before the District Court again on 13 September 2017 afterpleading guilty to charges of robbery and using threatening language. Judge Fitzgeraldimposed a cumulative sentence of eight months imprisonment on those charges.2Mr Elisaia accepts that Judge Fitzgerald was entitled to impose a cumulative sentencebecause this offending was discrete from that which led to the sentence imposed byJudge Wharepouri. Mr Elisaia appeals against the cumulative sentence of eightmonths imprisonment on the basis that it has produced a total sentence that is whollyout of proportion to the overall gravity of his offending.Factual background[3] It is not necessary to set out the facts in relation to the first set of chargesbecause Mr Elisaia accepts that the Judge imposed an end sentence on those chargesthat was within the available range. The focus of the appeal is therefore on the secondset of charges and, in particular, on the length of cumulative sentence that the Judgeimposed in respect of those charges.[4] The second set of charges arose out of two related incidents that occurredwhilst Mr Elisaia was in custody on the first set of charges. On 4 May 2017 Mr Elisaiawas in a holding cell at the Auckland District Court. He saw another person in the cellwearing a hooded leather jacket and he demanded the jacket from that person. Thevictim initially offered Mr Elisaia his t-shirt, but Mr Elisaia insisted on having thejacket. When the victim refused to hand it over, Mr Elisaia punched him in the faceon two occasions and took the jacket from him. He then used the jacket as a pillow as1 New Zealand Police v Elisaia [2017] NZDC 15548.2 New Zealand Police v Elisaia [2017] NZDC 20772.he lay down on the bench of the cell. The assault caused the victim to suffer a bleedingnose and some minor swelling but he did not require medical attention.[5] These events were captured on a CCTV camera. When an officer spoke to MrElisaia about the incident, he responded by making threats against the officer. Thisled to the charge of using threatening languageStructure of the sentencesThe sentence imposed on 14 July 2017[6] Judge Wharepouri took a starting point of 18 months imprisonment on the leadcharge, which he took to be a charge of receiving a stolen Land Rover motor vehicle.He then applied an uplift of 12 months to reflect Mr Elisaia's culpability on theremaining charges. Some of the offending had occurred whilst Mr Elisaia was on bail.The Judge applied an uplift of one month to reflect that fact, and then added a furthermonth to reflect Mr Elisaia's earlier convictions for offending of a similar nature. Thisproduced an end sentence of 32 months imprisonment before taking into accountmitigating factors.[7] The Judge reduced the sentence by eight months, or 25 per cent, to reflect earlyguilty pleas. He then applied a further discount of two months to reflect expressionsof remorse and rehabilitative efforts made by Mr Elisaia whilst in custody. Thisproduced the end sentence of 22 months imprisonment. The Judge imposed thatsentence on the lead charge, and then imposed concurrent sentences on the remainingcharges.The sentence imposed on 12 July 2017[8] Judge Fitzgerald sentenced Mr Elisaia two months after Judge Wharepouri hadsentenced Mr Elisaia to 22 months imprisonment. Judge Fitzgerald was thereforerequired to have regard to totality principles once he decided to impose a sentence thatwas cumulative on those imposed by Judge Wharepouri.3 In other words, he needed3 Sentencing Act 2002, s 85(2).to impose a sentence that was not wholly out of proportion to the overall gravity of allof the offending.[9] The Judge was clearly alive to this issue because he observed:4[4] In effect, what I need to do is put myself in the position the Judge wasin back in July and decide what the sentence would have been if these chargeshad been before the Court then. Now in carrying out that exercise, I acceptthat 12 months' imprisonment is appropriate to adopt as a starting point andthat is in relation to the robbery charge with the other charge included in thatas well.[10] The Judge did not apply any uplift to reflect Mr Elisaia's previous convictionsbecause Judge Wharepouri had already taken that factor into account when imposingthe earlier sentence. The Judge applied a discount of one month to reflect remorse andrehabilitative efforts, together with a further discount of five per cent, or three months,to reflect guilty pleas. This produced the cumulative end sentence of eight monthsimprisonment. He imposed a concurrent sentence of one month imprisonment on thecharge of using threatening language.The arguments[11] For Mr Elisaia, Mr Meyer submits that Judge Wharepouri would not haveimposed a sentence requiring Mr Elisaia to serve an extra eight months in prison if hehad sentenced Mr Elisaia on all charges on 13 July 2017. Mr Meyer points out thatJudge Wharepouri added a total uplift of twelve months to reflect all of the offendingother than that involving receipt of the stolen Land Rover. He submits it isinconceivable that the Judge would have increased that by a further twelve months toreflect the additional offending arising out of the incident in the court cells. He submitsthat, as Judge Fitzgerald expressly recognised, the offending in the court cells was ata relatively low level and involved no premeditation or lasting loss and injury to thevictim. As a result, Mr Meyer submits that the Court should reduce the cumulativesentence to one of approximately two months duration.[12] For the respondent, Ms Houghton contends that Judge Fitzgerald gave effectto totality principles by adopting a starting point towards the bottom of the available4 New Zealand Police v Elisaia, above n 2.range for a theft that was accompanied by violence directed to the head of the victim.She also submits that the Judge was required to build in an additional component toreflect the other charge. For those reasons she submits the cumulative sentence ofeight months imprisonment was within the available range.Decision[13] Although the Judge was obviously alert to the need to apply totality principles,he did not expressly say how he proposed to do that. By way of example, he did notselect a starting point of twelve months imprisonment and then conclude that an endsentence of eight months imprisonment after taking into account mitigating factorswas still appropriate having regard to totality principles. Nor did he say he hadreduced an otherwise appropriate starting point of more than twelve monthsimprisonment to reflect totality principles. I therefore have no means of knowing howhe approached this issue.[14] Looking at the matter afresh, I agree with Ms Houghton that a starting point oftwelve months imprisonment could not ordinarily be said to be outside the availablerange for the charges on which the Judge was required to impose sentence. Therobbery involved crude and callous standover tactics against another prisoner whomMr Elisaia clearly viewed as being an easy target. It also involved actual violencedirected to the victim's head. In addition, the sentence also needed to reflect thethreatening language charge. A starting point of twelve months imprisonment waswell within the available range for offending having those characteristics. Nor canthere be any issue regarding the discounts the Judge applied in respect of mitigatingfactors. As will already be obvious, the real issue is whether the cumulative sentenceof eight months was too high having regard to the totality of Mr Elisaia's offending.[15] One way of testing the approach taken by Judge Fitzgerald is to combine itwith that taken by Judge Wharepouri. This raises the issue of whether JudgeWharepouri could realistically have applied a further uplift of at least twelve monthsto reflect the offending in the court cell. If he did, it would be added to the twelvemonth uplift Judge Wharepouri applied to reflect the totality of Mr Elisaia's offendingother than the lead charge relating to the Land Rover. This approach would producean end starting point of three years six months imprisonment before taking intoaccount mitigating factors. I consider that to be too high having regard to the totalityof Mr Elisaia's offending. This suggests that the cumulative end sentence of eightmonths imprisonment on the second set of charges may also be too high.[16] Furthermore, the sentence that Judge Fitzgerald imposed had the effect ofincreasing the sentence Judge Wharepouri had earlier imposed by nearly one third. Iconsider this to be wholly disproportionate having regard to the nature of the lateroffending when compared to that for which Mr Elisaia had earlier received an endsentence of 22 months imprisonment. I do not consider the later offending warrantedan increase of more than approximately 25 per cent having regard to totality principles.Result[17] The appeal against sentence is allowed. The cumulative sentence of eightmonths imprisonment on the robbery charge is quashed, and a cumulative sentence offive months imprisonment is imposed in its place.Lang JSolicitors:Crown Solicitor, Auckland