Puriri v Police [2014] NZHC 2335 (24 September 2014)

Last Updated: 8 October 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000026 [2014] NZHC 2335

BETWEEN	HEMI PURIRI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	24 September 2014
Appearances:	L Collins for Appellant CER Power for Respondent
Judgment:	24 September 2014

_{ORAL JUDGMENT OF GENDALL J}

Introduction

[1] The appellant Mr Puriri appeals against a sentence of two years and one month’s imprisonment imposed by Judge Phillips in the Dunedin District Court on

1 August 2014 for the following charges:

(a) assault using a wire dog cage as a weapon;¹

(b) wilful damage;² and

_{(c) possession of cannabis.}³

¹ _{Crimes Act 1961, s 202C. Maximum penalty of five years’ imprisonment.}

2. Summary Offences Act 1981, s 11(1). Maximum penalty of three months’ imprisonment or fine of $2000.

³ _{Misuse of Drugs Act 1975, s 7. Maximum penalty of three months’ imprisonment/fine of $500.}

PURIRI v NEW ZEALAND POLICE [2014] NZHC 2335 [24 September 2014]

[2] Mr Puriri appeals on grounds that the starting point of two years’ imprisonment Judge Phillips adopted for the index charge of assault with a weapon was too high because he:

(a) incorrectly considered the victim as being vulnerable;

(b) disregarded the victim’s conduct when assessing Mr Puriri’s

culpability; and

(c) took the nature of the weapon into account as an aggravating feature. [3] Mr Puriri also appeals on the basis that Judge Phillips provided insufficient

credit for an early guilty plea.

[4] Mr Puriri says the culmination of these factors resulted in an end sentence that was manifestly excessive.

Background

[5] I turn now to the background facts in this appeal. The victim of the assault is a 20 year old female who is known to Mr Puriri. The victim of the broken car window relating to the wilful damage charge is a 55 year old man who is unknown to Mr Puriri.

[6] On 22 March 2014 Mr Puriri was drinking at an address in Turnbull Street. He left the address and walked along the road. Parked on the street was a flat deck truck, in which the victim and an associate were sitting.

[7] The victim asked Mr Puriri for a cigarette. As he handed over his tobacco, the victim took a hat from Mr Puriri’s head and wound the window of the truck up. Mr Puriri became agitated. He punched the windscreen of the truck, causing it to break. As he walked off he was followed by the victim and her associate. An altercation ensued.

[8] Mr Puriri then went to another address on Turnbull Street where he located a small wire dog cage, which he took and returned to the area where the victim was.

[9] He swung the dog cage at the victim’s head several times. The cage hit the victim in the face and arm. As a result, she received cuts to her face and arm. Several of her associates came to assist her.

[10] While at the Dunedin Central Police Station, Mr Puriri was searched. In his front left pocket two grams of cannabis material was located in a zip lock bag.

[11] At the time the police spoke to Mr Puriri it appears he was highly agitated and incoherent.

Judge Phillips’ decision

[12] I turn now to the decision in the District Court. Mr Puriri’s first appearance was on 24 March 2014 and he was refused bail on that occasion by a Justice of the Peace. He then appeared on 1 April 2014 and elected trial by jury. He was remanded to a Case Review Hearing on 12 June 2014. On 1 April 2014 he pleaded guilty to the possession of cannabis charge.

[13] On 11 June 2014 an extension of time was granted and the Case Review Hearing was adjourned to 26 June 2014. On that later date Mr Puriri pleaded guilty to the remaining charges.

[14] Mr Puriri came before Judge Phillips on 1 August 2014.

[15] The Judge adopted a starting point of two years’ imprisonment. Judge

Phillips identified the aggravating features as:

(a) the nature of the weapon, being a wire dog cage; (b) attacking the head;

(c) premeditation;

(d) a vulnerable victim; and

(e) unprovoked street violence.

[16] Judge Phillips noted Mr Puriri’s criminal history. He considered that

Mr Puriri had a number of violent convictions since 2009. He also noted

20 breaches of sentence and release conditions since 2000.

[17] The Judge uplifted the starting point by two months to reflect the other offending, and a further four months to reflect Mr Puriri’s previous history of violent offending. This brought the adjusted starting point to one of two years and six months’ imprisonment.

[18] Judge Phillips gave a 15 per cent discount for a guilty plea, or five months. He noted that Mr Puriri had first appeared before the Court on 24 March 2014, but did not change his not guilty plea to one of guilty until 26 June 2014. Judge Phillips considered that Mr Puriri did not have a positive defence to the charge, and was therefore not prepared to find for sentencing purposes that Mr Puriri pleaded guilty as soon as practicable.

[19] Judge Phillips did acknowledge a letter that Mr Puriri had written and confirmation that he had been attending the A & D programme while on remand. However, he considered that no further reduction to the sentence should be allowed.

[20] This produced an end sentence of two years and one month’s imprisonment.

[21] Judge Phillips also ordered reparation of $419.75 to be paid in full in a lump sum within 90 days of Mr Puriri’s release from the sentence of imprisonment. For the charge of wilful damage, Judge Phillips imposed a concurrent sentence of one month, and for the possession of cannabis, a concurrent sentence of 14 days.

Legal principles governing an appeal

[22] I now turn to the legal principles governing an appeal. Section 250 of the Criminal Procedure Act 2011 now governs sentence appeals from the District Court to the High Court. Section 250(2) of the Criminal Procedure Act 2011 provides:

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[23] The Court of Appeal has since confirmed that s 250(2) was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957. Not every error in a sentence will provide the foundations for a successful appeal. The types of error that are contemplated by s 250(2)(a) of the Criminal Procedure Act 2011 include:⁴

(a) Section 250(2) reflects a synthesis or rationalisation of the previous Crimes Act and Summary Proceedings Act provisions to provide a single test for all sentence appeals.

(b) The previous approach similarly required both the identification of an error and a need for the appeal court to be satisfied that a different sentence “should” be imposed.

(c) The practical effect of preserving the previous approach is that the appeal court does not start afresh nor simply substitute its own opinion for that of the original sentencer. Rather, it must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal.⁵ If there is an error of the requisite character, the court will then form its own view of the

_{appropriate sentence.}

⁴ _{Tutakangahau v R [2014] NZCA 279 at [26]- [36].}

⁵ R v Shipton [2007] 2 NZLR 218 (CA) at [139].

(d) In assessing whether an alleged error is of the requisite character, it will be helpful to consider whether the error is material.

(e) Although s 250(2) makes no express reference to the concept of a manifestly excessive or inadequate sentence, those concepts are long- standing and should continue to be utilised when considering s 250(2).

(f) The focus in sentence appeals remains on whether the sentence imposed is within range rather than the process by which the sentence was reached. In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).

Starting Point

[24] I turn now to consider the starting point. The Court of Appeal issued a guideline judgment for offending involving causing grievous bodily harm with intent to do so in R v Taueki.⁶ That judgment set three bands with increasing levels of seriousness depending on the presence and extent of various aggravating factors.

[25] In Nuku the Court of Appeal provided guidance on how Taueki should be adapted and applied in cases where the offending involves injuring with intent to injure, which is less serious offending. The Court determined there were three appropriate bands in relation to this sort of offending:⁷

(a) Band one is where there are few aggravating features and a less than custodial sentence could be appropriate;

(b) Band two involves three or fewer of the aggravating features listed in

_{Taueki that relates to more serious assaults;}⁸ _and

⁶ _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372.}

⁷ _{Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].}

⁸ R v Taueki, above n 6, at [31].

(c) Band three dictates that a starting point of two years up to the statutory maximum of five years will apply where there are three or more aggravating factors.

[26] It is the combination of aggravating features which leads to the more serious bands. The Court emphasised that sentencing is an evaluative exercise, not a formulaic one, and that the sentencing judge must evaluate the seriousness of any aggravating factors rather than simply focusing on the number of them. Equally, if a number of aggravating factors are present but only in a mild form, that may result in the offending being placed in a lower band.⁹

[27] In my assessment, Taueki and Nuku can be adapted and applied in cases such as the present where the offending is an assault with a weapon.

[28] In this case as I see it Judge Phillips rightly determined that to a certain extent three, or possibly four, Taueki aggravating features were present in the offending:

(a) The use of a weapon. I accept the wire dog cage used here was a form of weapon although clearly a less dangerous one than many weapons seen in situations such as the present such as knives, bats, batons, bottles, palings and the like.

(b) Attacking the head clearly occurred here.

(c) Premeditation, but again perhaps only to a limited extent in this case. (d) Despite Mr Collins’ submissions to the contrary I find that classifying

the victim in this case as a vulnerable person, being a slightly built female, is a further aggravating feature here.

[29] In my view, however, Judge Phillips has erred in this case by assessing street violence, the fifth factor he noted as an aggravating feature here. In addition, the

⁹ Nuku v R, above n 7, at [42].

seriousness of those other aggravating features I have noted above in my view do vary to an appreciable extent from the conclusions which Judge Phillips reached.

Conduct of the victim

[30] In R v Taueki the Court of Appeal held as follows on a broad issue of provocation:¹⁰

Provocation: Where the offender has been provoked, that may justify a lower starting point. It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence.

[31] In my view the present case bears similarities to Eldershaw v R. In that case, the appellant was walking along the road when he became annoyed with a young man sitting in a nearby car. Mr Eldershaw approached the car and punched the young victim. The young man drove off, with Mr Eldershaw clinging onto the car. The victim’s father came out of the victim’s house, which was nearby and advised Mr Eldershaw that any further dispute would be with him rather than his son. Mr Eldershaw then left the scene, but returned with a friend and two baseball bats.

[32] When considering the conduct of the victim under s 9(2)(c) of the Sentencing Act, the Court of Appeal in that case held that had the car punching incident stood alone, then the point may have been of relevance. However, the further offending was “all down to Mr Eldershaw”,¹¹ because he left, armed himself and returned.

[33] Before me counsel for Mr Puriri submitted that beyond the Summary of Facts but addressed orally at sentencing was a contention that Mr Puriri’s consistent instructions were that the victim and several associates had followed him from the driveway onto the street. He maintained that this group had retrieved a hockey stick and shovel as potential weapons against him from the rear of the vehicle.

[34] Whether or not this matter is relevant before me on appeal remains an outstanding issue. However, although these particular factors were not specifically

¹⁰ _{R v Taueki, above n 6, at [32]}

¹¹ Eldershaw v R [2013] NZCA 374 at [12]

addressed in the Summary of Facts before Judge Phillips, reference to the hockey stick was noted in the police event chronology at 14:20:22 with the words “Another female there now with a hockey stick...” and at 15:42.03 “They have weapons. Still on street. Male and female. Weapons are shovel.”

[35] As I have noted there was no reference to weapons however in the Summary of Facts or the formal written statements provided by witnesses. In my assessment, the facts of this case are not entirely dissimilar to those in Eldershaw. If the car smashing incident had stood alone, then provocation could have had some relevance. However, here Mr Puriri left, armed himself with the wire dog cage and returned to assault the victim. Accordingly, in my view this broad ground of appeal regarding the conduct of the victim and a form of provocation must fail.

[36] Notwithstanding this, in my assessment here Judge Phillips did err, particularly in first assessing street violence as an aggravating factor of the offending and secondly, in his broad characterisation of the strength of the other features he noted as aggravating. In my view all of this has resulted in Judge Phillips adopting a

starting point that was excessive in this case when having regard to similar cases.¹²

In my view a starting point in the vicinity of 18 months’ imprisonment would have

been appropriate in this case.

[37] The uplift however of two months’ imprisonment was justified to take into account the totality of offending here. At the time of the offending, Mr Puriri was subject to a sentence of community work.

[38] That would bring the starting point to one of 20 months’ imprisonment.

Personal aggravating factors

[39] Turning to look at personal aggravating features Judge Phillips in my view made no error when imposing an uplift of four months’ imprisonment for Mr Puriri’s substantial conviction history here. This brings the adjusted starting point to one of

_{24 months’ imprisonment.}

¹² Hurunui v R [2014] NZCA 290; Koroheke v R [2012] NZCA 477; Stone v R [2011] NZCA 558.

Mitigating factors

[40] Turning now to mitigating factors the guideline decision Hessell v R determines that the sentencing discount for a guilty plea by reference to a sliding scale dependent on the timing of the plea often failed to recognise other circumstances in which the plea was made such as:

(a) the strength of the prosecution case; or

(b) where it was first necessary to resolve disputed facts.

[41] The value to be attributed to a guilty plea is to be assessed having regard to all the circumstances of the case.

[42] In my assessment, when determining an appropriate discount for an early guilty plea, here Judge Phillips did take into account all the circumstances of the case, including:

(a) Mr Puriri did not change his not guilty plea to one of guilty until

26 June 2014; and

(b) the strength of the prosecution case against Mr Puriri.

[43] Therefore I find that the allowance of 15 per cent for an early guilty plea in this case was justified.

[44] This would bring the sentence to one of 20 months’ imprisonment.

Conclusion

[45] Accordingly, I find that the appeal before me should be allowed. The sentence of two years and one month’s imprisonment imposed by Judge Phillips is quashed, and a sentence of 20 months’ or one year and eight months’ imprisonment should be substituted. The other concurrent sentences of one month on wilful damage and 14 days on cannabis possession will stand and the order for reparation of $419.75 in the terms outlined in Judge Phillips’ decision also stands.

[46] As the end sentence is now a shorter term of imprisonment, this Court is potentially able to consider home detention as an alternative to imprisonment. Before me however counsel for Mr Puriri did not advocate for a sentence of home detention and this concession was appropriate in my view. Mr Puriri has significant convictions for breaches of sentence and release conditions and failures to answer bail. Given Mr Puriri’s history of failure to obey Court orders in my view home detention is not a suitable option in his case.

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

Gendall J

Solicitors:

RPB Law, Dunedin

Public Defence Service, Dunedin