FRANK V NEW ZEALAND POLICE HC TAU CRI 2009-463-60 [2009] NZHC 1443 (19 October 2009)

IN THE HIGH COURT OF NEW ZEALAND
TAURANGA REGISTRY
                                                                             CRI
2009-463-60



                                 JAMIE BARRY FRANK
                                       Appellant



          
                                         v



                                NEW ZEALAND POLICE
                               
     Respondent



Hearing:        29 September 2009
                (Heard at Rotorua)

Appearances: G Tomlinson for the Appellant
             C Harold for the Respondent

Judgment:       19 October 2009 at 4:15 p.m.


                           JUDGMENT OF WOODHOUSE
J


            This judgment was delivered by me on 19 October 2009 at 4:15 p.m.
                     pursuant to r 11.5 of the
High Court Rules 1985.

                                  Registrar/Deputy Registrar

                                ..........................................




Solicitors:
Mr G Tomlinson, Gowing & Co, Solicitors, Whakatane
Ms C Harold, Ronayne Hollister-Jones Lellman, Office of the Crown
Solicitor, Tauranga



FRANK V NEW ZEALAND POLICE HC TAU CRI 2009-463-60 19 October 2009

[1]    On 5 August 2009 Mr Frank was sentenced
to 2 ½ years imprisonment after
he pleaded guilty to four related charges. The most serious charge was causing
injury with intent
to avoid arrest following an escape from Police custody (Crimes
Act 1961, s 191(2)). The injury was caused to a female constable.
The sentence
imposed was 2 ½ years imprisonment.             A concurrent sentence of 2 years
imprisonment was imposed on a charge
of escaping from lawful custody (Crimes
Act s 120(1)(c)). On a charge of resisting the Police there was a concurrent sentence
of
2 months imprisonment. On a charge of breach of a local liquor ban Mr Frank
was convicted and discharged.


[2]    Mr Frank appeals
against the sentence as manifestly excessive.            The
particular grounds in support were:


       a)     The Judge adopted
a starting point of 3 years 9 months on the lead
              charge of aggravated injury. Mr Tomlinson, for Mr Frank, submitted
              that this was too high.


       b)     The Judge agreed that Mr Frank was entitled to credit for his guilty
     
        pleas and to credit for a number of mitigating personal factors, but in
              the result credit was given only for
the guilty pleas.


       c)     An end sentence of imprisonment should have been less than 2 years
              and, in all the
relevant circumstances, a sentence of home detention
              should have been imposed.


The facts


[3]    At around 1:15
a.m. on 9 May 2009 Mr Frank was seen on a street in
Whakatane. He was being confrontational and aggressive towards people standing
on the footpath outside a bar. He was spoken to by the Police, warned about his
behaviour and escorted out of the area.

[4]   
  About 30 minutes later Mr Frank was in the carpark of the same bar. He was
drinking from a bottle of beer. He was again being aggressive
towards bar patrons.
Mr Frank was placed under arrest by a constable. As the constable attempted to
handcuff Mr Frank he lashed out
and ran away. He was chased along various streets
before trying to hide in some bushes.


[5]      He was found in the bushes by
a female constable. The constable advised Mr
Frank that he was under arrest. Mr Frank again ran off. The constable chased him
and
tackled him to the ground.          There was a struggle.      Mr Frank pulled the
constable's torch from her hand. He stood up and
hit her on the head twice with the
torch.    The torch is 40 centimetres long, made of cast aluminium and weighs
approximately 900
grams. The constable retreated.


[6]      Mr Frank again ran off. He was stopped by another constable. When this
constable attempted
to make an arrest, Mr Frank threw wild punches at the
constable. Mr Frank was subdued with physical force and a pepper spray and
handcuffed.


[7]      The female constable suffered two large lacerations to the top of her skull
measuring 4 and 5 centimetres. 10 staples were required to
close the lacerations.
The other constable suffered a dislocated finger and a broken bone in his left hand.


[8]      The summary
of facts records that, when Mr Frank was spoken to the next
day, he was "compliant and showed remorse for his actions". He said that
he knew
he was under arrest and that "he just thought it would be easy to get away". He said
that he did not know what came over
him during the assault on the female constable.
He admitted striking her to get away.


Victim impact statement


[9]      The female
police officer provided a victim impact statement.                 After
reference to the incident and the injuries she said:

 
       I had 10 days off work because of the injuries to my head and have received
         treatment from a mental health professional
because of resulting stress,

       fatigue and sleepness nights which are subsequent side effects from the
       assault.

 
     The wounds to my head have not affected my appearance and are hidden
       behind my hairline but are a reminder to [sic] the
dangers of my profession
       and have caused me to approach situations in a different and more reserved
       manner.

     
 The defendant needs to take responsibility for his actions which have had an
       effect on my personal safety and professional
career.

       I am back at work and capable of full Police duties and have fully recovered
       from both the physical and mental
aspects of the assault.


The sentence


[10]   Judge Treston agreed with a submission for Police that the starting point
should
be "in the vicinity of" 3 ½ to 4 years. He fixed the starting point on the lead
charge of aggravated injury at 3 years 9 months.
The principal aggravating features
of the offending taken into account were the fact that there was an attack on a police
constable
in the execution of her duties, the use of a weapon, the attack to the head
with that weapon and the injuries to the female police
officer. The Judge also took
account of the facts relating to the charge of resisting arrest with injuries to the other
police officer.


[11]   It does appear that, although the Judge referred to the 3 years 9 months as the
starting point, this also included an uplift
for previous convictions for assault. These
were convictions for common assault in June and July 2002. The Judge in this
regard said
that these convictions were "some time ago and less serious, but they are
matters which I must take into account".


[12]   The Judge
dealt with Mr Frank's personal circumstances reasonably fully.
Because of the second main point on appeal it will assist to set this
out verbatim.

       [8]     The probation officer's report, which has been referred to,
       documents your age at 31. You are
the primary home owner where you and
       your mother reside. There has been a separation between you and your wife,
       but
you are endeavouring to reconcile your differences. I have available to
       me, on the file, some paperwork from her saying that
she wants a protection
       order discharged. You have had employment during your life. You are
       currently employed, it is
said, as a commercial sprayer. You admitted to the
       interviewing officer that you had had a significant amount of beer to drink

       that night. Again, you apologised for what had happened and in fact said
       quite frankly, "I apologise for my idiocy
and I deserve to be smashed on the
       head". You certainly appeared as being remorseful.

       [9]     You have also, as your
counsel has submitted, attended nine
       sessions, out of 12, for preventing violence. You have also attended alcohol
       counselling.
Both of those are voluntary. That is appropriate, because the
       assessment from the probation officer indicated that you have
a harmful
       pattern of alcohol, she expressed in double figures, whatever that means, but
       it obviously is a significant difficulty.

       [10]   You are
assessed as being a moderate risk re-offender. Nevertheless
       you have shown motivation and a willingness to attend to your
offending
       needs. The recommendation, which your lawyer accepts is inappropriate, is
       for community work and intensive
supervision.

       ...

       [13]     The mitigating facts referred to, on your behalf, are your co-
       operation with the
police, your early guilty plea, the fact that you are in full
       time employment, although perhaps just as with the other aggravating
       feature the Crown refer to, it is not a commonly employed mitigating factor
       but, in any event although you have previous
convictions for assault, they
       were not in the serious category. Another mitigating factor is your remorse,
       your voluntary
attendance at anger management and alcohol and violence
       counselling and the fact that you have now resolved to remain alcohol
free
       and that you have strong family support. The time line leading to your
       present predicament has been referred to
and that is certainly something
       which I take into account with the personal factors, which are outlined.

       [14]    In
summary, it is submitted to me that the pre-sentence report is
       positive. You are a person where rehabilitative options have
a real chance of
       success and that I ought to proceed in the way that is submitted on your
       behalf. ...

[13]   The "time
line" referred to by the Judge at [13] recorded increasing stresses
in Mr Frank's life from July 2008 through to his offending in
May 2009. The first
event, in July 2008, is recorded as: "House fire, near death experience for [Mr Frank]
wife and child. Total
loss of all possessions." There is reference to increasing
financial pressures, marital problems, and commencement of heavy drinking.


[14]   At [16] the Judge said:

       ... By way of mitigation, I give you credit for your plea of guilty, for the
       remorse
which you have expressed and for the other factors that I have
       referred to already in some detail, as was set out in your
counsel's
       submissions.

[15]    The Judge then fixed the "starting point", in the manner already discussed,
and said:

 
      Giving you such credit as I can, on [the charge of aggravated injury] I
        sentence you to two and a half years imprisonment.

There was, therefore, a credit of 15 months from the start of 3 years 9 months. That
is a credit of one-third.


Discussion : starting
point


[16]    Mr Tomlinson submitted that the starting point of 3 years 9 months was too
high. The essential basis for this was
that the starting point was based on the
decision of the Court of Appeal in R v Grant  [2009] NZCA 266, which upheld a
starting point of between 3 ½ and 4 years, but the offending in Grant was
significantly more serious than the offending
by Mr Frank.


[17]    In Grant, the appellant and his co-offender were in a police cell. When a
constable went to the cell to collect
rubbish the co-offender grabbed the constable
and pulled him into the cell. The constable was hit in the head. He fell to his knee,
dazed and disoriented. The co-offender then punched the constable repeatedly in the
side of the head. The constable blacked out.
The appellant, Grant, and the co-
offender then escaped. Grant and his co-offender were sentenced on the basis that
they were equally
culpable, and no issue appears to have been taken with that on
appeal. The Court of Appeal upheld a starting point adopted by the
sentencing Judge
of 3 ½ to 4 years. It was described by the Court of Appeal as "within the available
range". The end sentence, after
allowing for guilty pleas, was 2 years and 10
months.


[18]    Mr Tomlinson submitted that Judge Treston based his starting point
on Grant
because of submissions from counsel for the informant.         In those submissions
reliance was placed on Grant in support
of the informant's submission that the
starting point should be between 3 ½ and 4 years. Judge Treston noted that Mr
Tomlinson contended
that Grant was not applicable. The Judge said that he bore Mr
Tomlinson's submissions in mind.

[19]   Mr Tomlinson's submission
on appeal that Grant should be distinguished
was supported by reference to a number of considerations which were carefully and
responsibly
made. I have had regard to those points. However, I do not consider it
necessary to address these in detail.


[20]   I do not agree
that Judge Treston simply adopted a starting point of 3 years 9
months because the Court of Appeal in Grant had upheld the starting
point in that
vicinity in another case. The Judge plainly embarked on an independent assessment
of the gravity of the offending.
Further, when attention is directed to the gravity of
the offending in this case, I am not persuaded that distinctions can be drawn
between
the facts of this case and the facts of Grant sufficient to demonstrate manifest excess
in fixing a starting point of 3 years
and 9 months. There are some aggravating
features of the offending in Grant absent from Mr Frank's offending, but there are
also
aggravating features of Mr Frank's offending absent from that in Grant.


[21]   The aggravating features of the offending referred
to by the Judge are serious
aggravating features. Without wanting to diminish the aggravating nature of other
features, the matter
of particular concern was the attack on the female constable
acting in the execution of her duties. This was discussed in R v Williams
(CA177/96,
20 August 1996) at page 4 as follows:

       Law enforcement officers, by the very nature of their duty requiring them
to
       investigate suspicious circumstances, are particularly vulnerable to attack.
       This has consistently been recognised
by the Courts. In R v Walker
       CA.39/90, 22 May 1990, this Court referred to the earlier case of R v McKay
       CA.307/84,
3 April 1985 where this Court said:

               "This Court has on a number of occasions taken into account the
            
  special position of police officers who in this country are unarmed.
               In R v Simon, Barbarich, Roberts and White,
(CA 70-73/68,
               judgment 22 October 1968) this Court said:

                       "... in New Zealand ... we take pride
in the fact that our
                       police officers, in the performance of their ordinary duties,
                      
are unarmed ... but it must be understood that because our
                       police officers are unarmed when on ordinary duties,
the
                       Courts will take a very serious view indeed of an attack
                       made by anyone - whether
he be an escaped prisoner or not -
                       on a police officer, particularly so when the attack is a brutal
                       one as was the
position here.

                       In our opinion it would be harmful to the maintenance of
                       that principle
if we took any step in the way of reducing the
                       sentences in this case ..."

               More recently in
R v Bryant  [1980] 1 NZLR 264, a case involving
               very severe assaults on two police officers, this Court said:

                       "No community
can or will permit the use of such a weapon
                       (a hammer) upon an unarmed constable doing his
              
        conscientious best to discharge his responsibilities.""

       We agree with these observations. Where an attack is made
on a police
       officer, what may otherwise have been considered to be an appropriate
       sentence should be increased to take
into account this feature. Only in this
       way can the Courts do what it can to protect police officers acting in the
      
course of their duty.

[22]   A starting point of 3 years 9 months, fixed as a true starting point in relation
to the gravity of
the offending alone, might be regarded as at the higher end of an
appropriate starting point for this particular offending. In that
respect, however,
regard must be had to all of the associated offending. This includes the escape
following arrest and the fact that
Mr Frank resisted the second police officer.


[23]   It is also necessary to take account of the fact that the Judge included
personal
factors of an aggravating nature fixing what was described as the "starting
point". A starting point, in the sense described in R
v Taueki  [2005] 3 NZLR 372 at
[8], should be fixed by taking account of aggravating and mitigating features of the
offending only. The starting point in Grant
appears to have been fixed on that basis.


[24]   For these reasons I am not persuaded that the "starting point" of 3 years 9
months
was too high.


Discussion : credit for personal mitigating factors


[25]   There is the separate issue relating to credit for personal
mitigating factors. I
am satisfied that there was a material error which appears to have resulted in the
Judge imposing a sentence
longer than he intended to impose.

[26]   The credit of one-third from the starting point of 3 years 9 months is the
credit Mr
Frank is entitled to for his guilty plea. Ms Harold, for the respondent,
accepted that Mr Frank's guilty pleas were entered at the
earliest reasonable
opportunity and that Mr Frank was entitled to a credit of one-third for those pleas.
Ms Harold also confirmed
that there was agreement in the District Court on
sentencing that Mr Frank was entitled to a full credit of one-third for his guilty
pleas.


[27]   As a result it is apparent that the Judge, inadvertently, imposed a longer
sentence than was intended because no
credit was given for personal mitigating
factors other than the guilty plea. The comments by the Judge recorded at [15]
above indicate
that he placed reasonable weight on the range of other mitigating
factors put forward in the pre-sentence report, other written material,
and Mr
Tomlinson's submissions. It is therefore necessary to correct what appears to be a
plain error.


[28]   In my judgment the
other mitigating factors warranted a credit of between 6
to 9 months. This reduces a prison sentence from 30 months to between 21
and 24
months. Subject to the important remaining issue in respect of home detention, I
would substitute for the District Court sentence
a sentence of 21 months
imprisonment and adjust the other sentences appropriately.


Home detention


[29]   A sentence of home detention
can be imposed because the alternative for this
offending can only be a sentence of imprisonment, but that sentence of imprisonment
would be a "short term sentence of imprisonment" in terms of s 15A of the
Sentencing Act 2002. In consequence I am bound to consider
whether a sentence of
home detention, rather than imprisonment, is the appropriate sentence.


[30]   The starting point for considering
these alternatives is s 16 of the Sentencing
Act. This provides:

       16        Sentence of imprisonment

       (1)       When
considering the imposition of a sentence of imprisonment for
                 any particular offence, the court must have regard
to the desirability
                 of keeping offenders in the community as far as that is practicable
                 and consonant
with the safety of the community.

       (2)       The court must not impose a sentence of imprisonment unless it is
          
      satisfied that,--

                 (a)     a sentence is being imposed for all or any of the purposes in
                
        section 7(1)(a) to (c), (e), (f), or (g); and

                 (b)     those purposes cannot be achieved by a sentence other
than
                         imprisonment; and

                 (c)     No other sentence would be consistent with the application
                         of the principles in section 8 to the particular case.

[31]   The sentence is to be imposed in this case
for all of the purposes referred to
in s 16(2)(a) apart from paragraphs (c) and (g) of s 7. The relevant purposes are,
therefore:
to hold Mr Frank accountable for the harm done to both victims and to the
community by his offending; to promote in him a sense of
responsibility for and an
acknowledgement of that harm; to denounce the conduct; and to deter other persons,
and Mr Frank, from committing
the same or similar offences.


[32]   Because the sentence is being imposed for the purposes noted, it is then
necessary to consider,
pursuant to s 16(2)(b) whether those purposes "cannot be
achieved by a sentence other than imprisonment".                I will come back to
that
consideration.


[33]   The third consideration is that stated in s 16(2)(c). It is unnecessary to recite
the relevant principles.
In large measure they have been taken into account in
reaching what may be described as an indicative prison sentence of 21 months.
The
relevant principles in s 8 in some respects point towards a prison sentence and in
others away from it. This in turn points to
the heart of the question.


[34]   There are substantial reasons for imposing a sentence of imprisonment
notwithstanding the fact
that, as a matter of law, a sentence of home detention can be
considered. The dominant consideration is the one already dealt with;
this offending
involved a serious attack on a female police constable carrying out her difficult

duties. This was followed by a
further attack on another police constable. Weighing
towards home detention are the positive aspects of rehabilitation which are
likely to
be better promoted with home detention than with prison, and moderate risk of re-
offending.


[35]      This is the difficult
aspect of the appeal. It is the aspect which prompted me
to reserve my decision.       Having reflected on it, and giving full weight
to Mr
Tomlinson's careful submissions for Mr Frank, I am satisfied that there should be a
sentence of imprisonment rather than home
detention. More specifically, I am
satisfied that the purposes of sentencing in s 7(1)(a), (b), (e) and (f) of the Sentencing
Act
cannot be achieved by a sentence other than imprisonment, particularly when
those purposes are further considered in relation to
the strong statements from the
Court of Appeal about attacks on police officers. And I am further satisfied that no
sentence other
than imprisonment would be consistent with the application of the
relevant principles in s 8 of the Sentencing Act.


The other prison
sentences


[36]      Neither counsel made submissions on the sentence of 2 years imprisonment
for escaping from custody. The Judge
did not record reasons for the sentence of 2
years imprisonment. It is likely that it was, at least to an extent, assessed on a basis
proportional to the sentence of 2 years 6 months imprisonment. It should be adjusted
downwards against the revised sentence of 21
months imprisonment on the lead
charge.


Result


[37]      The sentences of 2 1/2 years imprisonment for aggravated injury (Crimes
Act
1961 s 192(2)) and 2 years imprisonment for escaping from lawful custody (Crimes
Act 1961 ss 118-120) are quashed.


[38]   
  For the offence of aggravated injury there will be a sentence of 21 months
imprisonment.

[39]   For the offence of escaping from
lawful custody there will be a concurrent
sentence of 16 months imprisonment.




_______________________________
Peter Woodhouse
J