Tawhiao v Police [2014] NZHC 1142 (27 May 2014)

Last Updated: 9 June 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-54 [2014] NZHC 1142

BETWEEN	KAYLA WAIMARIA TAWHIAO Appellant
AND	POLICE Respondent

Hearing:	19 May 2014
Appearances:	P Stokes for Appellant W Potter and N Walker for Respondent
Judgment:	27 May 2014

_{JUDGMENT OF COOPER J}

This judgment was delivered by Justice Cooper on

27 May 2014 at 4.45 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

_Date:

Solicitors:

Public Defence Service, Auckland

_{Meredith Connell, Crown Solicitors, Auckland}

TAWHIAO v POLICE [2014] NZHC 1142 [27 May 2014]

[1] Ms Tawhiao pleaded guilty to 12 different charges that arose from six separate incidents that took place between September and December 2013. The offences included a range of assaults, including assaulting the police and members of the public, disorderly behaviour, resisting the police and fighting in public.

[2] The guilty pleas followed discussions with police, and the amendment of some of the charges. The guilty pleas were entered at the first opportunity after the amendment of the charges

[3] Judge Ronayne sentenced her to an effective term of 19 months’

imprisonment. She now appeals against that sentence.

[4] It is convenient to describe the background facts to each of the charges by grouping them into the six different incidents.

Fiddler Bar incident

[5] The first two charges (which I will call charges 1 and 2) arose from an incident that occurred at licensed premises called “Fiddler Bar” in central Auckland. She was asked by staff at the entrance to provide identification. She refused to do so, swore and walked into the bar. Police were called and two constables arrived and spoke to her. They told her she was under arrest for an unrelated matter. She then tried to push past the police, biting one of them as she did so. She also kicked the constables, began to spit at them repeatedly, and swore at them. As she was taken to a waiting police car she resisted them.

[6] As a result of this incident the appellant faced two charges of common assault under s 9 of the Summary Offences Act 1981. The Judge sentenced her to one month concurrent terms on each charge.

Countdown wine incident

[7] Two days later, on 6 September, the appellant went to Countdown on Victoria Street, Auckland. Although the duty manager asked her to leave at the entrance, the defendant walked past him, picked up a cask of wine and made her way to the check-

out. She walked through the check-out area, making no attempt to pay for the wine. The wine was valued at $26.99.

[8] Later that evening she was found by police and arrested. A struggle ensued in which she was described as “lashing out with her arms and legs” and refusing to let the police handcuff her. She was eventually physically restrained and handcuffed.

[9] Two charges arose from that incident (charges 3 and 4). One was theft (under

$500), under ss 219 and 223(d) of the Crimes Act 1961. The other was resisting the police contrary to s 23(a) of the Summary Offences Act. The maximum penalty for each of those offences was three months’ imprisonment. The Judge imposed two months’ imprisonment on each charge, to be served concurrently.

[10] However, the sentences were ordered to be cumulative on the preceding terms of one month imposed on charges 1 and 2.

Sunglasses incident

[11] On 8 September 2013, the appellant threatened to “smash” a passing pedestrian when he declined her proposition that he should give her the cigarette that he was smoking. She approached and grabbed the cigarette from him. He called the police on his mobile phone, after which she approached him and punched him with a closed fist, hitting his jaw and causing the phone to fall to the ground. He suffered a split lip. The summary of facts recorded that sunglasses taken from the victim by the appellant were not recovered.

[12] This incident gave rise to two further charges (charges 5 and 6): one of common assault under s 196 of the Crimes Act, and the other a charge of theft (under

$500), under ss 219 and 223(d) of the Act. Those offences carried respective maximum penalties of one year’s imprisonment and three months’ imprisonment. On charge 5, the Judge imposed a sentence of nine months’ imprisonment and he convicted and discharged the appellant on charge 6.

[13] Once again those sentences were concurrent, but cumulative on the other two sentences.

The “bus stop” incident

[14] On 5 October 2013, the appellant was at a bus stop on the corner of Victoria Street West and Queen Street in central Auckland. She was observed by police screaming “unintelligible abuse” at members of the public. When spoken to by the police, they formed the view that she was highly intoxicated. She refused to provide them with her details and was then placed under arrest for disorderly behaviour. She then kicked and spat at one of the constables as they tried to place her in a nearby police vehicle.

[15] This incident gave rise to three further charges (charges 7, 8 and 9), namely assaulting the police under s 10 of the Summary Offences Act, disorderly behaviour under s 4 of and resisting police under s 23(a) of that Act. Those offences were punishable by maximum sentences of respectively six months’ imprisonment, a fine not exceeding $1,000 and three months’ imprisonment. The Judge imposed a sentence of four months’ imprisonment on charge 7, and convicted and discharged the appellant on charges 8 and 9.

[16] The four months’ term on charge 7 was directed to be cumulative on the sentences earlier imposed.

Fighting incident

[17] At around 10.40 pm on 22 October, the appellant was seen fighting with another woman outside a bar in central Auckland. When spoken to by the police she appeared highly intoxicated, and when told that she was under arrest she became agitated and refused to comply with police directions. After a struggle she was handcuffed and taken to a nearby police vehicle. During this process she behaved violently, kicking and pushing against the back door of the patrol vehicle.

[18] Two charges were laid as a result of these events (charges 10 and 11) Charge

10 alleged fighting in public contrary to s 7 of the Summary Offences Act, and charge 11 resisting police under s 23(a) of the Summary Offences Act. The maximum penalties for those offences were respectively a fine of $1,000 and a term of imprisonment of three months.

[19] On charge 10 the Judge convicted and discharged the appellant. On charge

11 he imposed a further cumulative term of one month’s imprisonment.

McDonald’s incident

[20] Shortly after midnight on 27 December 2013, the appellant was in the McDonald’s restaurant at 260 Queen Street in central Auckland. She began to smoke a cigarette, whereupon one of the other customers complained both to her, and subsequently members of the staff at the premises. He then went to leave the restaurant, but as he did so the appellant approached him and punched him in the face with a clenched fist. There was no evident injury, although it would have been painful.

[21] The appellant was charged with common assault under s 9 of the Summary Offences Act (charge 12). That carried a maximum term of six months’ imprisonment. The Judge sentenced her to a term of two months which was to be cumulative on the sentences earlier imposed.

The sentence

[22] In summary, the Judge sentenced the appellant to an effective term of 19 months’ imprisonment. This was the result of imposing in respect of each incident a sentence on one of the offences that was to be cumulative on the other charges before the Court.

[23] In his sentencing notes the Judge noted that the appellant was 28 years of age, and four months’ pregnant at the sentencing date. After summarising the facts relating to the charges the Judge made reference to previous convictions for shoplifting, assaulting the police, obstructing the police, failing to answer bail and other offending. He referred to the fact that much of the present offending was committed whilst the appellant was on bail which was an aggravating feature. Also aggravating was the fact that all of the offending was committed whilst the appellant was subject to a sentence of supervision.

[24] The Judge recorded a submission that had been made by Ms Stokes that a sentence of three months’ imprisonment would be appropriate as well as noting that the appellant had spent the past five to six weeks in custody.

[25] The essential reasoning behind the sentences imposed appears is contained in the following paragraphs from the sentencing notes:¹

[22] I have to hold you accountable for the harm that you have been doing. I also have to promote in you a sense of responsibility and an acknowledgement of what you have done. I have to cater, as best as I can, in a sentencing exercise for the interests of the victims, but importantly I have to denounce and deter this sort of continual criminal activity and I also have to protect the community from you. It seems to me, Ms Tawhiao, that you are out of control.

[23] There was a great deal of actual violence in your offending. It was all committed while you were subject to the supervision order and most of it was committed while you were on bail from the Court. You also have a considerable number of relevant previous convictions that I have to take into account as an aggravating factor. I also, however, take into account the fact that you are pregnant and also give you appropriate credit for your guilty plea.

[24] Bearing all of that in mind though it is my view that the submission made on your behalf that three months’ imprisonment would be appropriate is not able to be accepted. A considerably longer period of imprisonment is appropriate for you and the fact that you are pregnant is unfortunate. I have taken it into account, but that is something that you are going to have to live with.

[26] The Judge then proceeded to impose the sentences in the manner that has already been described.

[27] As Ms Stokes noted, the Judge did not articulate starting points for the offending, and nor did he specify the uplifts to be applied for aggravating features or any discounts for personal mitigating features. She submitted that in the circumstances, this Court needed to consider the position afresh.

The appeal

[28] Ms Stokes submitted essentially that the overall effective term of 19 months was inappropriate. She argued that the sentences for some of the individual charges

¹ Police v Tawhiao DC CRI-2013-004-014164, 31 January 2014.

were excessive having regard to the maximum sentences available and the circumstances of the offending. She also submitted that the sentences were inconsistent. However, the principal submission she made was that the Judge had not properly considered whether the effective sentence of 19 months was appropriate for the totality of the offending. She argued that if he had done so, the overall end sentence would have been substantially less. Allied to that submission was an argument that concurrent sentences should have been imposed, because the offending was of a similar kind, and was a connected series of offences, all of which were relatively low-level anti-social offending linked by the common theme of alcohol.

[29] Ms Stokes argued that a more appropriate approach would have been to take charge 5 (which carried the highest maximum term) as the most serious of the charges. She argued that a starting point of eight months would have been appropriate in respect of that offence, with an uplift of four months to reflect the other offending. She accepted that a further uplift of two months would then be appropriate to reflect the fact that the offending occurred while the appellant was on bail. She submitted that the maximum discount available for the entry of plea should then have been allowed with a further allowance for the appellant’s pregnancy.

[30] That would result in a final sentence in the region of ten months’

imprisonment, with concurrent sentences imposed in respect of the other charges.

[31] For the respondent, Mr Potter rejected the notion that this Court should approach the sentencing exercise afresh, referring to R v Shipton.² He argued, based on passages in the Court of Appeal’s judgment in R v Xie³ it is not necessary or productive for the court on appeal to embark on a reappraisal of whether the Judge should have adopted a different sentence structure.

[32] Mr Potter submitted that, in any event, the offences before the Court whilst having some similarities were not properly to be considered as a connected series of offences justifying the imposition of concurrent sentences for two reasons:

(a) First, many of the offences were separate in time, and the offending had occurred on six separate occasions.

(b) Many of the offences were different in kind. They included assaults against members of the public, theft and resisting and assaulting the police. He pointed out also that each set of offending was against different victims.

[33] Mr Potter accepted that s 85 of the Sentencing Act means that the Court must ultimately consider whether the final sentence is appropriate in light of the totality of the appellant’s criminal behaviour. However, he argued that while the Judge did not expressly refer to the totality principle it was clear that he had considered the appellant’s offending as a whole and had regard to the appropriate total sentence necessary to meet the purposes and principles of the Sentencing Act. Secondly, he submitted that the end sentence of 19 months’ imprisonment was in proportion to the gravity of the appellant’s overall offending and did not offend against the totality principle.

Discussion

[34] I accept, as was said by the Court of Appeal in R v Shipton, that the Court will not generally embark upon a fresh sentencing exercise for the purpose of substituting its own opinion for that of the original sentencing Judge. It is necessary to find some error which vitiates the exercise of the original sentencing discretion and the court on appeal should not interfere unless an error is found.⁴

[35] I note, however, that in that case the Court went on to say that it was not persuaded that the Judge adopted inappropriate starting points, having regard to the sentencing patterns at the relevant time.⁵

[36] In this case the Judge did not expressly state the starting points that he was applying and articulate in respect of each offence the relevant stages of the sentencing exercise. Nor did he state expressly the uplifts or allowances that he was

making for aggravating and mitigating circumstances. In such a case, the question of whether or not he has erred is likely, in the end, to rest on a judgment that this Court must form about the appropriateness of the sentence having regard to the totality of the offending. As the Court of Appeal observed in R v Xie:⁶

...The totality principle has long been “a standard principle of general application” and has variously been described as “the established judicial approach to sentencing for multiple offences” (R v Strickland [1989] 3

NZLR 47 (CA) at p 50) and “a recognised principle of sentencing

formulated to assist the Court when sentencing an offender for a number of offences” (Mill v R [1988] HCA 70; (1988) 166 CLR 59 at p 62). See generally Hall, Hall’s Sentencing (looseleaf ed), para [SA85.2]. The principle has been carried over to the Sentencing Act and is now enshrined in ss 84 and 85.

[37] The Court then referred to its decision in R v Barker⁷ in which the Court reiterated the key principles to be applied when sentencing for multiple offending:⁸

(a) With multiple offences the sentence must reflect the totality of the offending.

(b) In respect of multiple offences, this Court will not insist that the total sentence be arrived at in any particular way.

(c) The total sentence must represent the overall criminality of the offending and the offender.

[38] As the Court of Appeal also observed in Xie, those principles were effectively endorsed by ss 84 and 85. The former gives guidance on the use of cumulative and concurrent sentences, but it must be subordinate to the rule in s 85 that the total sentence must represent the overall criminality of the offending and the offender.

[39] The exercise for the appellate Court is more difficult when there are no tariff cases which can be used for the purposes of assessing whether, as required by

_{s 85(2), cumulative sentences that have been imposed have resulted:}

⁶ _{R v Xie above n 3 at [15].}

⁷ R v Barker CA57/01, 3 July 2001.

...in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

[40] The present case is in that category. However, having considered the position I have reached the view that the effective term of 19 months’ imprisonment that was imposed in this case is significantly out of proportion to the gravity of the appellant’s offending. Whether the approach was to be based on concurrent or cumulative sentences, there were here a number of low-level assaults on members of the public, minor assaults against the police as they were carrying out their duties, and other comparatively low-level offences. Such offending is, of course, absolutely to be discouraged, but it must be put in proper perspective. A sentence of 19 months’ imprisonment was in my view an overly stern response to the offending that was before the Court.

[41] Having reached that conclusion it is not necessary to enter into the debate as to whether the Judge should have imposed cumulative or concurrent sentences. Having decided that the sentence is too high having regard to the totality principle, the next question that logically arises is what sentence would appropriately reflect the totality of the offending.

[42] There is no dispute that this was a case which warranted a term of imprisonment. The number of offences as well as the appellant’s previous history justified that outcome and Ms Stokes did not submit to the contrary. However, her suggestion that a sentence of ten months would be sufficient to mark the overall gravity of the offending does not in my view reflect what occurred. The repetitive nature of the conduct, and the way in which each incident followed so quickly on the other is aggravating, as is the fact that the appellant offended while on bail and was also subject to a sentence of supervision. The mitigating factors included the early guilty pleas and the allowance that some of the authorities recognise can be made to reflect the fact of the appellant’s pregnancy.

[43] In the course of his thorough submission Mr Potter referred to conflicting

Court of Appeal authorities on the significance of pregnancy for sentencing

including R v Watts,⁹ R v Dunn,¹⁰ R v Maney¹¹ and R v Sylvia.¹² However, those cases all pre-dated the Sentencing Act 2002, and a number of High Court authorities since have proceeded on the basis that pregnancy can be relevant.¹³ This is not the occasion for a review of those authorities, and for present purposes the significant point is, I think, the Judge thought that some discount was appropriate in respect of the appellant’s pregnancy although he did not specify what it was.

[44] Taking these various considerations into account I consider that a final sentence of 13 months’ imprisonment would be an appropriate outcome. That would allow for an uplift of six months to reflect the two aggravating circumstances that the Judge correctly identified needed to be taken into account (previous convictions and offending on bail). Those aggravating considerations could then be balanced by an allowance of five months for the mitigating factors.

[45] If reference is then made to the maximum penalties that can be applied, it is clear that a final sentence of 13 months’ imprisonment could not be achieved by imposing a term of imprisonment on any one of these offences. The highest maximum penalty available, for charge 5, is one of 12 months. This means that it is necessary at least to some extent to resort to a combination of cumulative and concurrent sentences.

Result

[46] I allow the appeal and quash the sentences imposed in the District Court on all charges except those where the Judge ordered that the appellant be convicted and discharged (charges 6, 8, 9 and 10). Instead the following sentences are substituted:

(a) On the charge of common assault (charge 5) contrary to s 196 of the

_{Crimes Act 1961 (the offence committed on 8 September 2013, with}

⁹ _{R v Watts CA261/91, 13 September 1991.}

¹⁰ _{R v Dunn CA113/89, 2 May 1989.}

¹¹ _{R v Maney CA12/88, 18 April 1988.}

¹² _{R v Sylvia CA316/88, 7 December 1988.}

¹³ See for example Jeffery v Police [2012] NZHC 2927, Hotene v Police [2012] NZHC 1977 and R v Meas HC Hamilton CRI-2006-019-2543, 21 September 2006. Pregnancy did not alter the sentence imposed in Haddon v Police HC Gisborne CRI-2009-416-8, 20 May 2009 but that was because the Judge did not consider it appropriate in the circumstances of that case, not because of any jurisdictional bar.

reference CRN 113004012212) I impose a sentence of eight months’

imprisonment.

(b) On the charge of assault on a constable (charge 7) contrary to s 10 of the Summary Offences Act 1981 (the offence committed on 5 October

2013, with reference CRN 13004013465) a sentence of five months’

imprisonment cumulative on the previous sentence.

(c) I impose a sentence of two months’ imprisonment in respect of the charge of resisting the police (charge 4) contrary to s 23(a) of the Summary Offences Act 1981 (on 6 September 2013, CRN 13004012184) to be served concurrently with the sentence on charge 5.

(d) In respect of all the remaining sentences I impose terms of one month’s imprisonment, to be served concurrently with the sentence on charge 5.

[47] For the avoidance of doubt, the appellant remains convicted and discharged on charges 6, 8 ,9 and 10.