S v Police HC Auckland CRI 2009-404-301 [2009] NZHC 2349 (10 November 2009)

Last Updated: 1 February 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2009-404-000301}

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 9 November 2009

Appearances: T Faleauto for the Appellant

K Wendt for the Respondent

Judgment: 10 November 2009 at 4:30pm

JUDGMENT OF WYLIE J [Appeal against sentence]

This judgment was delivered by Justice Wylie on 10 November 2009 at 4:30pm

pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

T Faleauto, P O Box 76 689, Manukau City, Manukau 2214

Crown Solicitor, P O Box 2213, Auckland 1140

S V NEW ZEALAND POLICE HC AK CRI 2009-404-000301 10 November 2009

[1] On 28 July 2009, the appellant, Ms S , pleaded guilty in the Manukau

District Court to the following offences:

a) Common assault. This is an offence pursuant to s 9 of the Summary Offences Act 1981. The maximum penalty is imprisonment for a term not exceeding 6 months, or a fine not exceeding $4,000.

b) Dishonestly and without claim of right getting into a motor vehicle.

This is an offence pursuant to s 226(2) of the Crimes Act 1961 and it carries a maximum penalty of 2 years’ imprisonment.

[2] On 14 September 2009, Judge C S Blackie convicted and sentenced Ms S to 100 hours community work in respect of each of the charges. His Honour directed that the sentences should be cumulative. The total sentence imposed was therefore one of 200 hours community work.

[3] Ms S has appealed by notice of appeal dated 19 September 2009. She asserts that the 100 hours sentence for unlawfully getting into the motor vehicle was manifestly excessive.

Relevant facts

[4] On 13 May 2009, Ms S , together with three other associates, was at the Mangere East Library on Massey Avenue, Mangere. Ms S and her associates became involved in an argument with the victim, a 16 year old girl. The argument escalated. One of Ms S ’s associates punched the victim once in the face. Another grabbed her by the hair. The appellant, Ms S , then punched the victim twice in her head. The fourth member of the group punched the victim seven to eight times in the body. When spoken to by the Police, Ms S admitted to the facts, and said that she had only punched the victim because she was fighting with her “sister”.

[5] The following day, Ms S , along with a number of associates, was picked up by the driver of a Mazda Bongo motor vehicle which had been taken

unlawfully from a property in Papatoetoe. She sat in the rear of the vehicle as it was driven around the Mangere area. The vehicle was driven to Auckland Airport, where it was observed by an airport security officer. The Police were informed, and the vehicle and its occupants were located driving in a northerly direction on George Bolt Memorial Drive. The vehicle was stopped a short time later in Mangere. When spoken to by the Police, neither Ms S , nor any of her co-offenders, could offer any explanation for their actions.

[6] Ms S is an 18 year old female student. As at 13/14 May 2009, she had not previously appeared before the Courts. However, on 30 June 2009, she was convicted of disorderly behaviour and fined $200, together with Court costs of $130. This offending occurred on 30 May 2009.

Judge’s sentencing notes

[7] Judge Blackie had Ms S , together with two of her co-offenders, before him. He recited the relevant facts. He noted that it was cowardly assault – “three against one”, and that the victim was helpless as the blows were meted out to her. His Honour also noted that the victim was younger than Ms S . In relation to the charge of getting into the motor vehicle, His Honour noted that the motor vehicle belonged to a tradesman who relied on it for work purposes.

[8] Judge Blackie referred to the pre-sentence report, and to the recommendation in that report that the Court should impose a sentence of community work. He imposed the sentences noted above, and recorded that they should be served cumulatively. The Judge commented that Ms S could not expect “two crimes for the price of one”.

Submissions

[9] Mr Faleauto on behalf of Ms S submits that the sentence imposed for unlawfully getting into the motor vehicle was excessive, and that if a sentence of that length was to be imposed, it should not have been made cumulative with the

sentence imposed for the common assault. He did not take issue with the 100 hours community work sentence in relation to the common assault. Nor did he take issue with two sentences being imposed on a cumulative basis. He did however submit that the total sentence imposed infringed the “totality principle”, and that it was excessive having regard to Ms S ’s overall criminality. He also argued that Judge Blackie took insufficient account of mitigating factors. He noted that Ms S pleaded guilty at the earliest opportunity, and that she has been removed by her parents back to Samoa, to take her away from the influence of her co-offenders and associates.

[10] Ms Wendt for the Police noted that the Ms S has the onus of demonstrating that the sentence imposed on her was manifestly excessive. She submitted that it is the end sentence imposed by Judge Blackie which is relevant, rather than how he got there. She submitted that the total effective sentence of 200 hours community work was not manifestly excessive when considered against the overall criminality, and after taking into account the aggravating and mitigating features relevant to the offending and the offender and the totality principle.

Analysis

[11] Judge Blackie did not undertake the normal analysis discussed in cases such as R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372. He did not articulate his starting point. Nor did he expressly consider the aggravating or mitigating features of the offending, or the aggravating or mitigating circumstances personal to Ms S . It does not however follow that the end sentence imposed was manifestly excessive.

[12] It is common ground that the lead offence was that of common assault. While there is no express appeal against the sentence of 100 hours community work imposed in regard to that offence, the way in which the arguments were developed in this Court throws into issue the question of whether the end sentence imposed is manifestly excessive for the overall criminality involved in both offences.

[13] There is no tariff case for common assault under s 9 of the Summary

Offences Act 1981. Cases cited to me, such as R v Norman [2007] NZCA 351 and

Currie v The Police HC AK CRI 2008-404-307 27 May 2009, Potter J, involved more significant assaults than that which occurred in the present case.

[14] In Norman, the appellant, together with others, attacked the victim, and punched her in the head up to 12 times. The appellant pleaded guilty to a charge of common assault under the Crimes Act, and was also found guilty, following a jury trial, of one count of injuring with intent to injure. She was sentenced to 8 months’ imprisonment. She appealed to the Court of Appeal. The Court of Appeal considered that community work and supervision were sufficient to adequately achieve the purposes of denunciation and deterrence. The appeal was allowed and the sentence of 8 months’ imprisonment was quashed. In substitution, the appellant was ordered to undertake 300 hours community work, and to be subject to supervision for 9 months.

[15] In Currie, the appellant had pleaded guilty to two charges of common assault and to one charge of unlawfully being in a building. He sought discharge without conviction, but this was declined, and he was sentenced to 125 hours community work and $200 reparation. He appealed. The appeal was dismissed.

[16] I am of the view that a sentence of community work was appropriate. Ms S ’s offending did not require a custodial sentence or any of the more restrictive sentences noted in s 10A of the Sentencing Act 2002. The imposition of a more restrictive sentence would have been inappropriate given the provisions of s 8(g) of the Act.

[17] The end sentence imposed in relation to the common assault charge – 100 hours community work – suggests that the Judge’s starting point was 150 hours community work, or perhaps a little more. Such a starting point would have allowed for Ms S ’s early guilty plea, and for other mitigating factors such as her age and her lack of previous convictions. There were, however, aggravating features to the offending – for example, the fact that actual violence was used – s 9(1)(a) – and the extent of the harm resulting in the offending – s 9(1)(d). The victim stated in a victim impact report that she was only 16 years old at the time, and that she was too scared to go back to the library for fear of being attacked again. Further,

Ms S ’s conviction for disorderly behaviour was also relevant, and notwithstanding that that offending occurred after the offending here in issue. I refer to Adams on Sentencing, paragraph SA9.15-3.

[18] I cannot conclude that the sentence of 100 hours community work was manifestly excessive in relation to the common assault. If anything, it was perhaps a little light.

[19] The sentence imposed – 100 hours community work – in respect of the offence of unlawfully getting into the motor vehicle does seem to me to be a little high, given that the lead offence was common assault and given the relatively peripheral nature of Ms S ’s offending in this regard. There were no aggravating features to this offending. There were, however, some aggravating features personal to Ms S . This offending occurred on the day following the common assault, and it was followed only a few weeks later by the disorderly behaviour offending. These other offences indicate that the offence of getting into the motor vehicle was not an isolated incident, but rather that it was part of a trend, probably arising out of Ms S ’s association with her co-offenders. Any mitigation arising from Ms S ’s age, and lack of previous convictions, must, as a result, be either reduced or negated – see R v Barrett [1999] 1 NZLR 146 at 150 -

153.

[20] In my view, Judge Blackie was justified in imposing the sentences on a cumulative basis. The offences were different in kind, and they were not a connected series of offences. I refer to s 84 of the Sentencing Act.

[21] I have considered the overall criminality of Ms S ’s offending. I accept the Crown’s submission that the sentence has to reflect the totality of Ms S ’s offending – see R v Barker CA 57/01, 30 July 2001, at [10].

[22] After considering the matter in the round, it is my view that overall sentence imposed by Judge Blackie totalling 200 hours community work is not manifestly excessive. Had I been sentencing Ms S , I would have arrived at the sentence in a rather different way, but that is irrelevant. It is not for me on appeal to insist that

the total sentence be arrived at in any particular way. In light of the seriousness of the common assault charge, and the separate nature of the two different offences committed, in my view the sentence was neither manifestly excessive, nor disproportionate to the overall offending. The sentence is stern and it should serve to reinforce the principles of denunciation and deterrence which in my judgment are important in cases of this kind.

[23] The appeal is dismissed.

Wylie J