PETERSEN v POLICE [2017] NZHC 2855

PETERSEN v POLICE [2017] NZHC 2855 [21 November 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-000336[2017] NZHC 2855BETWEEN WOLFGANG PETERSENAppellantAND NEW ZEALAND POLICERespondentHearing: 20 November 2017Counsel: JW Mackey for AppellantEAM Mok for RespondentJudgment: 21 November 2017JUDGMENT OF DOWNS JThis judgment was delivered by me on Tuesday, 21 November 2017 at 1 pm.Registrar/Deputy RegistrarSolicitors/Counsel:Meredith Connell, Auckland.JW Mackey, Auckland.[1] On 15 September 2017 Judge A J Fitzgerald sentenced Mr Wolfgang Petersento a term of two years and four months' imprisonment.1 On behalf of Mr Petersen, MrMackey contends the sentence is manifestly excessive. Mr Mackey's primaryargument is that the Judge uplifted the starting point unduly for offending unconnectedto the most serious offence of aggravated robbery. The respondent contends thesentence is unobjectionable as within range, and indeed benign.[2] The Judge was confronted with three sets of offending. Between 21 and23 August 2016, Mr Petersen—who was then 16—and two adult offenders committedaggravated robbery and two burglaries. The trio robbed staff at a service station andburgled two commercial premises. A stolen vehicle was used in relation to theseoffences, as was a "ram-raid" technique: smashing into premises using a stolen car.On 24 July 2017 Mr Petersen was transferred from the Youth Court to the DistrictCourt for sentence.[3] On 7 February 2017, Mr Petersen and two others burgled a service station. MrPetersen had just turned 17. This offending originally resulted in a term of intensivesupervision and community work, but because it was committed while Mr Petersenwas awaiting sentence for the August 2016 offending, the Department of Correctionsapplied to the District Court to cancel the sentence.[4] On 24 June 2017, Mr Petersen and many others attacked a young man andwoman, and stole the man's phone after knocking him unconscious. This led to aninjuring with intent to injure charge. Mr Petersen unlawfully took a car the next day.Mr Petersen committed all of this offending while subject to the community-basedsentence in relation to the February 2017 burglary.[5] Judge Fitzgerald adopted a starting point of five years' imprisonment for theAugust 2016 aggravated robbery. The Judge considered the 2017 injuring would, inisolation, have warranted a starting point of two years' imprisonment. A similarstarting point was considered appropriate for the 2017 burglary, had it stood alone.The Judge adopted a global starting point of six years and two months' imprisonmentin recognition of the totality principle.1 R v Petersen [2017] NZDC 22021.[6] The Judge then heavily discounted the sentence: 30 percent for youth;10 percent for remorse; a further 10 percent in recognition of Mr Petersen's difficultbackground; and 25 percent for guilty pleas. The result: a sentence of two years andfour months' imprisonment.[7] Mr Mackey takes no issue with the five-year starting point for the aggravatedrobbery. But, he contends the 2017 offending should not have resulted in an uplift of14 months. The argument has two discrete elements:(a) The uplift for the injuring offence should not have been more than sixmonths' imprisonment.(b) The uplift for the 2017 burglary was "invalid" as Mr Petersen did notconsent to being re-sentenced. It follows there was no jurisdiction forJudge Fitzgerald to uplift the sentence for this offence.[8] Mr Mackey contends home detention would have been available but for theseerrors. That sentence would mean Mr Peterson would not be in prison, and therebyaway from other and older inmates who may further influence Mr Peterson in thewrong direction "of a life of crime".[9] I deal with the second argument first. Sections 54K and 68 of the SentencingAct 2002 permit a Court to vary or cancel sentences of intensive supervision andcommunity work when the offender has failed to comply with the sentence, or whenthere has been a change in circumstance so the sentence is no longer appropriate. Theoffender's consent is not required.[10] Judge Fitzgerald was satisfied Mr Petersen had failed to comply with hissentence of intensive supervision and community work. And Mr Mackey was givenopportunity to make submissions on the application by Corrections. In any event, theother statutory criterion was met in that Mr Petersen's circumstances had changed andthe sentence was no longer appropriate; he was now in custody for sentence on a raftof serious matters.[11] Mr Mackey submitted the community work sentence could have sat alongsidea sentence of home detention. For the respondent, Ms Mok accepted as much.2However, as she noted, the issue was moot unless there was a realistic prospect theend sentence was two years' imprisonment or less.[12] Which brings me to Mr Mackey's first contention. Mr Mackey contended theinjuring offence did not justify a nine-month uplift, for, an 18-month starting pointwould have been appropriate had this offence stood alone. In the alternative,Mr Mackey contends a nine-month starting point was too great in any event, and thisuplift materially contributed to the sentence exceeding the two-year threshold forhome detention.[13] It is convenient to begin with the facts, which the Judge summarised:3The facts in relation to the second set of charges are that you were with a groupof about 10 associates who began verbally abusing the first victim. You tookexception to an item of clothing he was wearing and began punching himabout the face and body, striking him repeatedly using both hands. You alsoattempted to kick the victim but slipped and fell. You then continued yourattack on the victim, punching and kicking him while several associates joinedin. The victim fell to the ground and lost consciousness. While he lay on theground you removed a satchel from him containing various items including aphone belonging to the second victim, a female. When she attempted to grabthe bag and pull it free from your grasp you attempted to kick her head butmissed and struck her in the shoulder. The first victim was left unconsciousand bleeding from the mouth and suffered several broken teeth plus cuts to hisface.[14] As will be apparent, Mr Petersen instigated the offending, which wasunprovoked. He administered blows to the head. The victims were hopelesslyoutnumbered (10 or 11 to two). The male victim was rendered unconscious.Mr Petersen stole his phone while he was defenceless. Mr Petersen also attempted tokick the female victim to the head when she attempted to stop him. He hit her in theshoulder. The male suffered significant injury. The sequence is unhappy. Andcowardly.2 See Sentencing Act 2002, s 19.3 R v Petersen, above n 1, at [4].[15] As the Judge recognised, the offending has similarities to Takerei v Police.4That defendant assaulted two victims. The first was knocked unconscious. Thesecond suffered only a minor graze. The sentencing Judge adopted a starting point oftwo years' imprisonment in relation to the lead charge of injuring with intent to injure,with an eight-month uplift for the second attack. Thomas J considered the startingpoint well within range.[16] For these reasons, I consider the starting point approach unimpeachable,particularly given Mr Petersen was then subject to a community-based sentence inrelation to the February 2017 burglary.[17] This leaves the issue of uplift, which turns on operation of the totality principle.The respondent cited Toluono v Police, in which I said:5The totality principle operates to prevent grossly disproportionate sentences.Contrary to popular misconception, the principle does not permit a defendantto commit additional crimes without punishment. But it does conventionallyentail some reduction of the starting point that would have been adopted hadthe offending stood alone. The level of reduction depends on circumstance.There is no prescription.[18] Early discussion of the totality principle is found in R v Bradley,6 in whichCooke J said consecutive sentences should not result in an aggregate "wholly out ofproportion to the gravity of the offences". As this statement implies, the totalityprinciple embraces two competing elements: a requirement the sentence reflect thegravity of the offending; and a corresponding requirement the sentence not bedisproportionately severe. Care must always be taken to balance the two, for, asEichelbaum CJ observed, defendants may otherwise believe further offences can becommitted with impunity.7 Or as Harrison J observed, defendants may go"unpunished".8 But equally, sentences must not be crushing, especially when theoffender is a young person or recently beyond Youth Court jurisdiction.4 Takerei v Police [2014] NZHC 3360.5 Toluono v Police [2017] NZHC 809 at [21] (footnotes omitted).6 R v Bradley [1979] 2 NZLR 262.7 Hiroki v Police HC Wellington AP31/92, 13 May 992.8 R v McDonald HC Auckland CRI-2009-004-16897, 22 September 2009 at [37].[19] Again, I consider the Judge's approach unimpeachable. The Judgesignificantly discounted the 2017 offences while ensuring these—which were seriousin their own right—did not go unpunished. Moreover, the February burglary wascommitted while Mr Petersen was on bail for aggravated robbery and burglary; andthe injuring offence while Mr Petersen was subject to a sentence for the Februaryburglary. An appreciable uplift was required to reflect the seriousness of the 2017offending and its multiple aggravating features.[20] It follows I accept Ms Mok's submission there was no realistic prospect of asentence at or below the threshold for home detention; no issue was taken with thefive-year starting point; and the uplifts were available.[21] I acknowledge this conclusion will disappoint Mr Peterson's father, whoattended the hearing of the appeal. But as I explained to him, appeal Courts may notintervene in this context unless the Court below committed error, and a differentsentence should be imposed. That is not the position here.[22] The appeal is dismissed...Downs J