Paikea v NZ Police [2017] NZHC 1286

Paikea v NZ Police [2017] NZHC 1286 [13 June 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-425CRI-2016-404-426CRI-2016-404-427[2017] NZHC 1286BETWEEN WIREMU PAIKEAAppellantAND NEW ZEALAND POLICERespondentHearing: 27 March 2017Appearances: G Vear and F Lowery for AppellantE Hoskin for RespondentJudgment: 13 June 2017JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 13 June 2017 at 3.00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarIntroduction[1] Wiremu Tukotuku Paikea, aged 27, pleaded guilty and was sentenced by Judge B A Gibson in the Auckland District Court on 15 November 20161 to threeyears and 11 months' imprisonment on charges arising from events on the followingdates:(a) On 12 February 2016, reckless driving,2 driving while disqualified,3and failing to comply.4(b) On 14 February 2016, theft (under $500).5(c) On 12 March 2016, unlawfully getting into a motor vehicle6 and intimidation.7(d) On 22 March 2016, burglary,8 unlawfully taking a motor vehicle,9reckless driving,10 driving while disqualified (third or subsequent),11and injuring with intent to injure.12[2] All of Mr Paikea's offending took place while he was subject to a nine-month supervision order for shoplifting and driving-related charges on which he had been sentenced on 19 January 2016. Moreover, the March offending took place while Mr Paikea was on bail for the February offending.[3] Mr Paikea appeals against the total effective end sentence on the ground that it is manifestly excessive.1 R v Paikea [2016] NZDC 22948.2 Land Transport Act 1998, s 35; maximum penalty three months' imprisonment or a $4,500 fine.3 Section 32(1)(a); maximum penalty three months' imprisonment or a $4,500 fine.4 Section 52(1)(c); maximum penalty a $10,000 fine.5 Crimes Act 1961, s 219; maximum penalty three months' imprisonment under s 223(d).6 Section 226(2); maximum penalty two years' imprisonment.7 Summary Offences Act, s 21(1)(a); maximum penalty three months' imprisonment.8 Crimes Act, s 231; maximum penalty 10 years' imprisonment.9 Section 226(1); maximum penalty seven years' imprisonment.10 Land Transport Act, s 35; maximum penalty three months' imprisonment or a $4,500 fine.11 Section 32(1)(a); maximum penalty two years' imprisonment or a $6,000 fine.12 Crimes Act, s 189(2); maximum penalty five years' imprisonment.Factual background[4] On 12 February 2016 police responded to a call about a car driving strangelyon the motorway. They observed Mr Paikea's car swerving across lanes towardsother cars. The police twice attempted to stop Mr Paikea on the motorway, but he failed to remain stopped or respond to police lights and sirens. He drove dangerously to avoid police, causing the police to abandon the pursuit. When he exited the motorway and then left the vehicle on foot, Mr Paikea was arrested.[5] On 14 February 2016, Mr Paikea shoplifted a children's slide worth $229.[6] On 12 March 2016, Mr Paikea arrived at a property in a stolen car. He became aggressive towards the occupant, then swung his hand at her face, stoppingjust before hitting her, with his hand touching her face. He told the victim, "You're lucky I didn't connect".[7] On 22 March 2016, Mr Paikea entered an open garage while the occupant was in the kitchen of the adjacent house. He took car keys off a fridge and stole a vehicle. He drove in a way that attracted attention, resulting in a police chase. During that chase, he drove through red lights, drove at speeds of up to 150 kilometres in a 50 kilometre per hour zone, overtook in the face of oncoming traffic, and swerved dangerously through motorway lanes. He stopped only when his tyre burst. A police dog handler then attempted to place Mr Paikea under arrest. Mr Paikea punched him in the face with a closed fist, causing cuts to his lip and a bleeding nose.District Court proceedings[8] Judge Gibson provided a sentence indication on 27 September 2016.13 He indicated that, after appropriate discounts including for pleading guilty, theappropriate end sentence would be one of three years and 11 months' imprisonment,with two cumulative sentences imposed for the offending on 12 March 2016 and13 R v Paikea DC Auckland CRI-2016-044-001018, 27 September 2016.22 March 2016. Mr Paikea did not accept the sentence indication but he pleaded guilty on the eve of trial.[9] Sentencing Mr Paikea on 15 November 2016, Judge Gibson said he relied on the reasoning he gave in the sentence indication. That had involved taking the injuring charge as the lead offence but including the burglary to reach a globalstarting point of three years and six months' imprisonment for the offending on22 March 2016.14 At sentencing, however, the Judge took burglary as the lead offence.15 The Judge did not explain expressly how he reached the "global starting point" but he did indicate that the burglary offending rested "towards the bottom end of the range" mentioned by the Court of Appeal in Arahanga v R of 18 months to two years and six months' imprisonment.16 By deduction, he must have uplifted the sentence by two years for the unlawful taking, injuring and driving offences on 22 March. Judge Gibson also noted, without disagreement, the Crown's submissionthat the injuring falls at the bottom of band two of the guideline judgment of the Court of Appeal in Nuku v R,17 where the range is "up to three years' imprisonment"where three or fewer aggravating features exist. I return to this issue below.18[10] Judge Gibson said that while he could cancel the appellant's sentence of supervision and resentence him to a term of three months' imprisonment, he haddecided to decline to do so. Instead, the Judge cancelled the sentence of supervision and resentenced Mr Paikea on the shoplifting and driving-related offending by convicting and discharging him and remitting his fines as appropriate recognition ofMr Paikea's rehabilitative steps while in prison. Although Judge Gibson said that a discount for guilty plea should be "worth no more than 10 percent", he appears infact to have applied discounts of 12.5% (six months) and 16.67% (five months) to each of the main charges.[11] No uplift was added for the charges of theft, reckless driving, driving whilst disqualified, and failing to comply, for which concurrent short periods of14 R v Paikea (Sentencing Indication), above n 13, at [4].15 R v Paikea (Sentencing Notes), above n 1, at [5].16 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].17 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].18 At [25].imprisonment were imposed. Mr Paikea was disqualified from driving for a period of 18 months. No minimum period of imprisonment was imposed.Grounds of Appeal[12] Mr Paikea appeals his sentence on the ground that the sentence was manifestly excessive because:(a) the starting point adopted was excessive;(b) no credit was allowed for Mr Paikea's rehabilitative efforts; and(c) insufficient credit was allowed for his guilty pleas.SubmissionsAppellant's submissions[13] Ms Vear for the appellant submits that the starting point adopted for the 22 March offending does not correspond with case law on injuring with intent to injure and burglary. Counsel argues that that the injuring with intent offending should fall in band one of the guideline scale in Nuku v R,19 and that an appropriate starting point would be 12 – 15 months' imprisonment. Ms Vear then submits that an appropriate starting point for the burglary offence, alongside the charge of unlawfully taking a motor vehicle charge, would be 12 months' imprisonment.Before an uplift for the driving offending, she submits an appropriate overall starting point for the 22 March offending of injuring and burglary is between 24 and 27 months' imprisonment. It is said that a minor uplift of three months for thedriving offending is warranted, which would result in 27 to 30 months'imprisonment.[14] The appellant's position is that a six-month uplift for totality is sufficient to take into account the 12 March offending, and that a three month uplift for prior19 Nuku v R, above n 17, at [38].convictions and offending on bail would be appropriate. That would bring the sentence for the offending to between 36 and 39 months' imprisonment.[15] Ms Vear submits that Mr Paikea ought to receive a 10 per cent discount for his rehabilitative efforts. She submits that Judge Gibson's approach of offsetting thiscredit for any substituted sentence for the supervision order amounted to a sanction for failure to comply with his sentence of supervision. She also submits that a 10 per cent discount was not sufficient credit for Mr Paikea's guilty pleas, and that adiscount of 15 – 20 per cent was warranted on the basis it was reasonable for Mr Paikea to withhold his guilty plea until the charges were amended to more accurately reflect the criminality and gravity of the offending. This would bring thefinal sentence to between two years and three months' imprisonment and two years and five months' imprisonment.Respondent's submissions[16] For the respondent, Ms Hoskin submits that the sentence discloses no error by the sentencing Judge and properly reflects the appellant's culpability.[17] In relation to the starting point, Ms Hoskin submits that a starting point oftwo years to two and a half years' imprisonment would be appropriate for theinjuring with intent to injure offence alone. Taking into account the burglary and driving offences, she submits that a global starting point of three years and six months was entirely appropriate.[18] She submits that the Judge's decision not to impose an additional three months' imprisonment in substitution for the aborted sentence of supervision wassufficient credit for the appellant's rehabilitative efforts.[19] Counsel argues also that a 10 per cent discount for the guilty pleas was sufficient given Mr Paikea did not plead guilty until the eve of trial, despite receiving confirmation of the possible charges five days previously. Moreover, the guilty pleas were entered in the face of a very strong case.Approach to appeals against sentence[20] An appeal against sentence is an appeal against the exercise of discretion. A first appeal court must only allow the appeal if satisfied that:20(a) there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[21] Thus the appeal court "does not just start afresh nor simply substitute its ownopinion for that of the original sentencer".21 Before imposing its own view of the appropriate sentence, the court must find an error of the requisite character. This will involve establishing that the sentence is manifestly excessive or wrong in principle, or that there are exceptional circumstances.22 Despite s 250 making no expressreference to "manifestly excessive", this principle is "well-engrained" in the court'sapproach to sentence appeals.23[22] The focus is on the end sentence rather than the process adopted to reach the end sentence. If the end sentence is within range, an appeal court will not tinker with it.24Analysis[23] Because the sentencing Judge did not in the course of the sentence indication or sentencing itself expressly analyse the component parts of the sentencing relative to the principal offending, it is useful to test his approach by undertaking the assessment anew.20 Criminal Procedure Act 2011, s 250(2).21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].22 Tutakangahau v R, above n 21, at [31].23 Tutakangahau v R, above n 21, at [33], [35].24 Ripia v R [2011] NZCA 101 at [15].Starting point[24] I agree with Judge Gibson that the offending on 12 March and the offending on 22 March were two separate, unrelated instances of offending. He was justified in sentencing cumulatively for the two different dates, and I will follow the same approach in undertaking my assessment.[25] On appeal the parties agreed that the charge of injuring the Police officer with intent to injure on 22 March 2016 should be taken as the lead offence. The Police pursuit culminated in Mr Paikea punching a police dog handler in the face, causing cuts to his lip and a bleeding nose, not in themselves serious injuries. They did, however, involve a blow to the head and could have had much more serious consequences. Furthermore, the offending is aggravated by being an attack on a Police officer carrying out his duty and intended to facilitate escape.25 Taking account of those factors, I do not accept Ms Vear's submission that the case fallswithin band one of Nuku v R.26 As Ms Hoskin submitted, the offending is appropriately classified in band two, attracting a starting point of up to three years imprisonment. On the particular facts, a starting point of 18 months to two years'imprisonment to reflect the gravity of the offending, while stern, would not be outside the available range.[26] The burglary and unlawful taking of a motor vehicle also committed on 22 March 2016 form the early part of a connected series of events, but they involve discrete offending of a different kind and I see no reason why they should not be considered cumulatively upon the injuring charge.[27] If the burglary is assessed as standalone offending, it would justify a startingpoint of at least 18 months' imprisonment, in terms of the Arahanga guidelines, for a"dwelling house burglary at the relatively minor end of the scale."27 That would be consistent with the approach taken by Courtney J in Taiatu v R on appeal from the25 Sentencing Act 2002, s 9(1)(fa).26 Nuku v R, above n 17, at [38]: "where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender's culpability to be at a level thatmight have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate".27 Arahanga v R, above n 16.District Court, a case referred to by Ms Vear in which the defendant and an associate broke into the garage of a residential address, took car keys and drove off in the vehicle from the garage.28 A concurrent sentence of one year for the unlawful taking of a motor vehicle, would be appropriate. Moreover, the charges of reckless driving and driving while disqualified on 22 March 2016 would warrant an uplift of threemonths' imprisonment.[28] Looking at the offending overall, therefore, I would have concluded that the 22 March offending justified a global starting point of between 39 months and 45months' imprisonment. Judge Gibson's global starting point of three years and six months' imprisonment is within that range.[29] Turning to the 12 March offending, I consider the intimidation and unlawfully getting into a motor vehicle were offending of a low level and warrant a combined uplift to the starting point of one month imprisonment. This would result in a total starting point of between 40 and 46 months' imprisonment for Mr Paikea to reflect the gravity of the offending overall.[30] Judge Gibson then applied an uplift to reflect the aggravating consideration that the offending occurred while Mr Paikea was on bail and under a sentence of supervision. Section 9(c) of the Sentencing Act 2002 identifies offending while on bail as an aggravating feature of the offending which justifies an uplift from the starting point. Although s 7(1)(f) of the Sentencing Act may be aimed at deterring the defendant and others from offending in the same way, the reach of s 9(c) it is not limited to such instances.29 The Court is entitled to conclude that a defendant'soffending while on bail demonstrates that the fact of arrest and pending punishment have not deterred him from criminal activity; in those circumstances, a sentencing judge is entitled to increase a sentence starting point to reflect the need for added deterrence. Bearing in mind totality principles, an uplift of up to four months to the global starting point is justifiable on that basis.28 Taiatu v R [2014] NZHC 1787.29 R v Whiunui CA212/05, 9 November 2005.[31] That would result, before taking into account the other relevant personalfactors, in a total starting point of 44 to 50 months' imprisonment for all fourinstances of offending.Adjusting the starting point[32] I now turn to the aggravating and mitigating factors relevant to the offender.[33] Mr Paikea's previous convictions are relevant. While he is only 27,Mr Paikea has accumulated 59 convictions since 2006. Many of them similarly involve offending in relation to motor vehicles. Where previous offending indicates that an offender has a predilection to offend in a specific way, and accordingly deterrence is a more important factor, this may be taken into account.30 This warrants a further uplift of four months, leading to a total of 48 to 54 months'imprisonment; that is, four to four and a half years.[34] Mr Paikea argues his rehabilitative attempts while in jail warrant a discount. I accept that Mr Paikea is making an effort to rehabilitate. His completion of short programmes and enrolment in future courses is a positive step. The sentencing report states that Mr Paikea is genuinely remorseful and that he wants to be around to lookafter his young son, who is currently in the custody of Mr Paikea's mother.[35] Ms Vear takes issue with the Judge's approach to Mr Paikea's rehabilitativeefforts and asserts he was entitled to a 10 per cent discount on that account. Judge Gibson addressed the rehabilitative attempts by not substituting a term of imprisonment for the offending for which he was initially sentenced to supervision.The Sentencing Act 2002 requires a "resentencing" court to take into account theportion of any previous sentence that remains unserved.31 That is different from the uplift imposed for offending while on bail or serving a sentence; it is a substitute for the earlier supervisory sentence which cannot be completed because of intervening events.30 Regan v Police [2016] NZHC 161 at [20].31 Sentencing Act, s 54(5).[36] Judge Gibson indicated that he would have sentenced Mr Paikea to threemonths' imprisonment as a substitution for the portion of the nine months'supervision outstanding. A substitution of three months' imprisonment is in line with similar "conversions" made by this Court.32 But in light of Mr Paikea'srehabilitative attempts, Judge Gibson did not substitute any period of imprisonment for the remaining supervision period. The three month uplift would otherwise have been imposed so it is effectively a discount of three months, and appropriate.Discount for guilty pleas[37] Mr Paikea pleaded guilty on the eve of trial. As Judge Gibson noted, this was in the face of very strong evidence, including police helicopter footage of the pursuit and altercation with the police officer. He was driving the car stolen in the burglary. Ms Vear submits that the late date of plea should not be held against Mr Paikea, as it was the first opportunity available to plead to the amended charge sheet which more accurately represented the gravity of the offending. Given that Mr Paikea pleaded guilty reasonably promptly after the amended charges reflected the offending, the pleas indicate a degree of acceptance of responsibility for the offending.33 A discount of around 15 per cent is not inappropriate.[38] Applying a guilty plea discount of 15 per cent to the total effective sentence reached at [33] would result in an end sentence of between three years and fivemonths' and three years and 10 months' imprisonment. It follows that the sentenceof three years and 11 months' imprisonment appealed from is at the top of the rangeI would have arrived at. That reflects my view, on close analysis, that the global starting point taken by the Judge was one which, while stern, was available to him, and that he addressed the incidence of uplifts and discounts in a principled manner. The extent of those discounts, in a relatively complex sentencing setting, is very much a matter of judicial assessment.32 See, for example, Hough v Police [2017] NZHC 93, in which Ellis J substituted a sentence oftwo months' imprisonment for the outstanding 31 hours of community work sentence and fourmonths' supervision.33 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [65].[39] I am not persuaded that there was any error in the Judge's approach which ledhim to impose a term of imprisonment that was manifestly excessive. There was no challenge to the period of 18 months' disqualification from driving which I accept asappropriate.Result[40] I dismiss the appeal........................................... Toogood J