R v Taurere HC Whangarei CRI 2011-488-000030 [2011] NZHC 767 (7 July 2011)

Last Updated: 31 July 2011

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CRI 2011-488-000030}

THE QUEEN

v

_{NGAUAMA TAURERE}

Hearing: 7 July 2011

Counsel: D B Stevens for the Crown

R Bowden for the Prisoner

Judgment: 7 July 2011

_{ORAL JUDGMENT OF WYLIE J}

Distribution:

DB Stevens: [e-mail]

R Bowden: [e-mail]

R V N TAURERE HC WHA CRI 2011-488-000030 7 July 2011

[1] Mr Taurere appeals against a sentence of two months’ imprisonment imposed by Judge TH Everitt in the District Court at Whangarei on 5 May 2011. The sentence was imposed in relation to one charge of assaulting a Police Officer pursuant to s 10 of the Summary Offences Act 1981.

Factual Background

[2] Mr Taurere is 44 years of age. He has a lengthy criminal record, although he has not offended in any significant way since 2003. His last conviction for an offence involving violence was as long ago as 1996.

[3] At about 10.50 pm on 27 April 2011, Mr Taurere was at his home in William Jones Drive, Whangarei. There was some discord in the home, as the family’s social welfare benefit had been cut due to a failure to return a form which Mr Taurere and his partner denied having received. Mr Taurere became drunk and damaged some furniture. The Police attended. It was decided that it would be appropriate for Mr Taurere to spend the night at another address. While the Police were in the process of making the necessary arrangements, Mr Taurere walked out onto the road and he began swearing loudly. He was told to calm down and be quiet on a number of occasions. He declined to do so. He was then arrested for a breach of the peace, and to allow for a period of detoxification.

[4] Mr Taurere was handcuffed and then led to the nearby police car. As he approached the police car, he raised his right foot and forcefully stomped it down on the front shin and foot of the accompanying officer, a Sergeant Hayes. Mr Taurere was wearing a pair of ankle-length leather lace-up work boots. The Police Officer was also wearing heavy footwear, and there was no serious injury to his shin or foot.

[5] In a victim impact report, Sergeant Hayes recorded that he received a “very minor scrape” to the front of his left shin. He noted that the footwear being worn by him at the time prevented any injury to his foot. The footwear he was wearing was made of strong leather and the boots had steel caps in them. Sergeant Hayes acknowledged that this was a “very minor assault”.

[6] Mr Taurere was taken to the Police Station, and charged with assaulting a Police Officer. While being processed, he apologised to Sergeant Hayes for the incident.

[7] On 4 May 2011, Mr Taurere saw the duty solicitor. He then entered a guilty plea to the charge. He was remanded in custody, so that a report could be obtained from the Probation Service and Mr Taurere’s eligibility for legal aid could be determined. A legal aid application was filed by the duty solicitor. Following the luncheon adjournment, Mr Taurere was re-called before the Court. A different duty solicitor was present. So was a Mr Rowsell, who is a Senior Probation Officer. At the request of the Judge, Mr Rowsell gave a brief oral probation report to the Court. Mr Rowsell was aware of Mr Taurere from previous matters. He pointed out to the Court that Mr Taurere had kept away from serious trouble for a period of some eight years. He suggested to the Court that it should step back from a punitive sentence to encourage Mr Taurere in the endeavours he had made to turn his life around. Judge Everitt indicated that he was not prepared to accept that recommendation, and sought Mr Taurere’s agreement that he should be dealt with then and there with the duty solicitor acting on his behalf. Mr Taurere did not agree to that course. He was again remanded in custody.

[8] Mr Bowden was then appointed to represent Mr Taurere by the Legal Services Agency. He interviewed Mr Taurere. Mr Taurere indicated that although he had initially pleaded guilty, he disputed some relevant facts and that he wished to vacate his plea. That advice was communicated to Judge Everitt by counsel, and the Judge indicated that a disputed facts hearing would be held at

10.00 am the following day, 5 May 2011.

[9] Mr Bowden then interviewed the officers who had attended at Mr Taurere’s address. He then discussed the matter with Mr Taurere again, and Mr Taurere accepted the facts as relayed by the officers and instructed that he did not wish to proceed with his application to vacate his plea, or to dispute the Police version of events. Sentencing proceeded before His Honour Judge Everitt on 5 May 2011 at

11.00 am.

The Judge’s Decision

[10] Judge Everitt recited the relevant facts. He referred to the oral report given by Mr Rowsell (wrongly referred to in the sentencing notes as Mr Firth) and then noted that he was not prepared to accept that recommendation. He expressed the view that assaults on Police Officers are becoming increasingly common, and that the Court should seek to deter such offending. The Judge noted that “it is a serious offence, it is not a minor matter, and as soon as people realise that the better”. The Judge emphasised the need to deter and denounce such offending. He referred to Mr Taurere’s criminal record, and adopted a starting point of three months’ imprisonment. He then applied a discount of one-third in recognition of Mr Taurere’s guilty plea. An end sentence of two months’ imprisonment with six months’ standard and special conditions was imposed.

The Appeal

[11] The appeal is brought pursuant to s 116 of the Summary Proceedings Act

1957. Mr Taurere asserts that the sentence imposed is manifestly excessive.

[12] Such appeals proceed by way of re-hearing, and this Court’s powers are

contained in s 121. Relevantly, s 121(3) provides as follows:

121 In the case of an appeal against sentence, the High Court may—

(a) confirm the sentence; or

(b) if the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—

(i) quash the sentence and either pass such other sentence warranted in law (whether more or less severe) in substitution therefore as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or

(ii) quash any invalid part of the sentence that is severable from the residue; or

(iii) vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.

Submissions

[13] Mr Bowden appearing for Mr Taurere submitted that the sentence is manifestly excessive. He argued that the sentencing Judge did not consider alternatives to the imposition of a term of imprisonment, and that the offending was, in the words of the victim, a “very minor assault”. He noted that no injury was occasioned by the assault. He acknowledged that exception was rightly taken to the assault by Sergeant Hayes, but pointed out that as a consequence, Mr Taurere was detained overnight. He also notes that he was detained in Ngawha Prison on the night of 4 May 2011, and that following the sentence he remained in custody until

1 June 2011. It follows that Mr Taurere has to date spent some 26 days in prison.

[14] Mr Bowden also submitted that Judge Everitt erred when he referred to legislation which had then recently been introduced to Parliament. That legislation was the Sentencing (Aggravating Factors) Amendment Bill. Mr Bowden submitted that a bill before Parliament should not be considered by the Courts, and that it was incorrect for the Judge to rely on the introduction of the bill to justify any uplift in the appropriate sentence. He also submitted that the Judge should not have sentenced in the absence of a proper pre-sentence report, and that in any event, he, as counsel appearing for Mr Taurere at the time, was not made aware of the report. He submitted that there was a breach of the rules of natural justice.

[15] Mr Bowden acknowledged that there are no guideline judgments for such offending, but referred me to the decision of French J in Williams v Police,[1] where Her Honour in the circumstances of that case amended a charge of assaulting the Police to a charge of common assault, but confirmed a sentence of one months’ imprisonment as being appropriate, concurrent on a two year sentence for arson. Mr Bowden submitted that similar offending is generally met with community work

_{sentences, and advised that he had been unable to find any stand alone sentences of}

imprisonment for assaulting a Police Officer. He submitted that given Mr Taurere’s background, and the substantial improvement in his criminal history, the sentence imposed was excessive, and should be set aside.

[16] I referred Mr Bowden to a decision: Barnes v Police.[2] Mr Bowden submitted that the offending in that case, while similar, was more serious than the offending which Mr Taurere faced.

[17] Mr Stevens for the Crown noted Judge Everitt’s reference to the Bill which was then before Parliament, and referred me to a decision of the Court of Criminal Appeal in England, R v Sergeant,[3] where the Court noted that it should not disregard public opinion, and that its main duty was “perhaps” to lead public opinion. He submitted that Judge Everitt’s reference to the Bill before Parliament was simply an acknowledgement of the Government’s reaction to the increasing frequency of assaults on Police. He submitted that the Judge was entitled to have regard to that fact, and was entitled to impose a sentence which denounced Mr Taurere’s conduct.

He submitted that the Judge did refer to the oral report from the Probation Officer, and explained why he was not prepared to accept his recommendations. He argued that it is the duty of the Court to impose a sentence which it considers appropriate. He submitted that a sentence of deterrence was appropriate, and that the Judge rightly considered that deterrence was particularly relevant in light of Mr Taurere’s criminal history which included similar offending. He submitted that the sentence imposed was not manifestly excessive, and it was open to the Court to impose the same.

Analysis

[18] I am not persuaded that the Judge erred when he referred to the Bill which was then before Parliament. The relevant sentence in the Judge’s sentencing notes is as follows:

I am not prepared to do that [step back from a punitive sentence] because over the years, the offence of assaulting Police has increased from virtually

negligible to a daily charge which appears in the Court, or most in the lists, and it is clear to me and to Parliament that the criminals are taking no notice whatsoever of penalties imposed by the Courts and are going to increase the penalty for assaulting Police, it is before Parliament now. That is not decisive, but it indicates the view taken by right thinking members of the community that the Police are there to protect the community, not to be beaten up and kicked about like a football.

[19] The reference to the Bill which was then before the House was not, in my view, necessarily inappropriate. Judge Everitt was doing no more than reflecting on the perceived need to protect the Police. His observations in relation to the Bill were not determinative in the sentence that he ultimately imposed. Arguably, they informed the decision-making process, but only in a relatively minor and peripheral way. I do not consider that the Judge’s reference to the bill has of itself resulted in the imposition of a sentence which was manifestly excessive.

[20] I acknowledge the point made by Mr Bowden that he as counsel, was not made aware of the oral pre-sentence report which had been given to the Judge the previous day. That is unfortunate, and it should not have occurred. However, as Mr Bowden acknowledged, a pre-sentence report is not a mandatory requirement in terms of s 26 of the Sentencing Act. It would generally be highly desirable that a pre-sentence report be obtained, particularly for serious offending, but even when a report is obtained, a Judge is not constrained by the recommendations made. It is the duty of the Court to impose the sentence which it assesses as appropriate, and a Judge cannot surrender that function to a Probation Officer.

[21] Further, Judge Everitt in his sentencing notes indicated the advice he had received from the Probation Officer, and indicated that he was not prepared to accept the Officer’s recommendations for the reasons which he elaborated in Court. The opportunity was available for Mr Bowden to object at that point of time and to ask the Judge to pause so that he could make submissions in relation to the oral pre- sentence report. That did not occur.

[22] I also acknowledge Mr Bowden’s argument that the offending was a minor

assault and that there was no injury caused as a result.

[23] Clearly, Mr Taurere’s conduct was not at, or even near, the top end of offending under s 10. The Act permits a maximum sentence of six months’ imprisonment for this offence. The Judge adopted a starting point of half that figure. The Judge’s starting point was certainly stern. He did however emphasise the need for deterrence and the need to denounce Mr Taurere’s conduct. He allowed a generous discount for the plea of guilty, notwithstanding Mr Taurere’s prevarication in relation to that plea.

[24] Was the Judge’s starting point too high?

[25] There is no tariff case for such offending. It appears that imprisonment for terms ranging from one to three months has been imposed for medium gravity assaults such as kicking and head-butting, but that more minor assaults such as spitting or pushing which are one-off, or which occur in the context of other serious offending, are more likely to receive a sentence of periodic detention, supervision, community work, a fine, or a minimal period of imprisonment. The various sentences are undoubtedly coloured by the circumstances and the context in which

the offending took place.[4]

[26] The most helpful authority that I have been able to find is the decision of Ronald Young J in Barnes v Police.[5] Mr Barnes was sentenced to six months’ imprisonment after conviction on a charge of assaulting a Police Officer. He was intoxicated at the time and had been arrested. He refused to walk to the patrol car, and he was carried to the car by a Police Officer and another person. He kicked out at the Police Officer, hitting him several times. There was no record of any injury to

the Police Officer. Mr Barnes had a history of violent offending stretching back over

_{20 years. His recent criminal history contained some serious violent offending, and}

he had recently been arrested and placed in custody for a number of offences involving disorderly behaviour. Ronald Young J concluded that the sentence of six months’ imprisonment was manifestly excessive. He noted the facts of the case. He acknowledged that what had happened should not be under-valued, but recorded that there was no report of any injury to the Constable, nor any victim impact report. His Honour considered that Mr Barnes’ offending was not at or near the top end or band of serious offending in this type of offence, and he allowed the appeal. He quashed the sentence of six months’ imprisonment, and substituted a sentence of three months’ imprisonment cumulative on other sentences imposed on the offender.

[27] As Mr Stevens acknowledged, Mr Taurere’s offending was less serious than that in Barnes. There was only one kick, as opposed to multiple kicks. The offending was one-off and did not occur in the context of other offending. Further, Mr Taurere did apologise within a short timeframe. There was no injury of any significance to Sergeant Hayes. Sergeant Hayes in the victim impact statement acknowledged that what occured was a “very minor assault”.

[28] Nevertheless, assaulting Police Officers is a serious matter, and the Police are entitled to expect that such conduct will be dealt with appropriately and if necessarily strongly.

[29] In my judgment, the starting point adopted by the Judge in this case was too high. A more appropriate starting point would have been a term of imprisonment in the vicinity of four to six weeks. A deduction of approximately 20 to 25 per cent should have been allowed for the guilty plea as it was made at the first available opportunity. There should have been a further, albeit minor, discount for the remorse expressed by Mr Taurere, apparent from his apology to Sergeant Hayes. Moreover, some recognition should have been given to Mr Taurere for the fact that he has turned his life around in recent years and that for some period, he has been largely out of trouble.

[30] In my judgment, recognnition of all of these various factors compels the conclusion that a sentence of three weeks’ imprisonment would have sufficiently denounced the conduct in which Mr Taurere became involved. A period of three

weeks is substantially less than the period of imprisonment of two months imposed by His Honour Judge Everitt. It follows that in my judgment, the sentence imposed by the Judge was manifestly excessive.

[31] The appeal is allowed. A sentence of three weeks’ imprisonment is

substituted therefore.

[32] As I understand it, Mr Taurere has already spent some 26 days in prison. It follows that he has served more than the sentence which I consider appropriate. He does not need to return to prison. I am however, satisfied that the same post-release

_{conditions as were imposed by the Judge should apply.}

Wylie J

---

[1] Williams v Police HC Dunedin CRI 2008-412-10, 27 May 2008.

[2] _{Barnes v Police HC Palmerston North CRI 2006-454-03, 7 February 2006}

[3] R v Sergeant (1974) 60 Cr App R 74 at 77.

[4] Taiapa v R [2011] NZCA 48 ( three months for assaulting a Police Officer); R v Chiyabi [2008] NZCA 10 (three months for head butting a Police Officer); Cooper v Police HC Auckland CRI 2009-404-261, 9 November 2009 (one month imprisonment for kicking an officer in the chest and lower body); Einan v Police HC Hamilton CRI 2005-419-20, 23 February 2005 (seven days’ imprisonment for spitting at a Police Officer); Gurney v Police HC Auckland AP116/96, 26 November 1996 (three months’ periodic detention for kneeing a Police Officer in the groin And two months’ periodic detention for biting a Police Officer’s hand); Wall v R [2010] NZCA 494 (12 months’ intensive supervision for spitting at a Police Officer); Rameka v Police HC Whangarei CRI 2010-488-050, 3 December 2010 (150 hours’ community work for assault Charge, no details given); Waata v Police HC Nelson AP10/02, 27 June 2002 ($400 fine for pushing a Police Officer).

[5] Barnes v Police HC Palmerston North CRI 2006-454-03, 7 February 2006.