Watt v Police [2014] NZHC 3055 (2 December 2014)

Last Updated: 9 December 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2014-412-37 [2014] NZHC 3055

BETWEEN	AYDEN WATT Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	19 November 2014
Appearances:	A Dawson for the Appellant C E R Power for the Respondent
Judgment:	2 December 2014

_{JUDGMENT OF MALLON J}

Introduction

[1] Mr Watt pleaded guilty to and was convicted on charges of possession of cannabis for supply,¹ assaulting a police officer with intent to avoid arrest,² driving while disqualified,³ driving dangerously,⁴ and failing to stop.⁵ He was also for sentence for a breach of community work⁶ and in relation to a remission of $4,350 of fines. He was sentenced to two years and three months imprisonment in the District Court at Dunedin.⁷ He appeals against his sentence on the ground that it is

_{manifestly excessive.}

¹ _{Misuse of Drugs Act 1975, s 6 (maximum penalty of eight years imprisonment).}

² _{Crimes Act 1961, s 192(1)(c) (maximum penalty of three years imprisonment).}

3. Land Transport Act 1998, s 32(1)(a) and 32(3) (maximum penalty of three months imprisonment or a $4,500 fine; minimum six months disqualification).

⁴ Section 35(1)(b) (maximum penalty of three months imprisonment or a $4,500 fine; minimum

_{six months disqualification).}

⁵ _{Section 52(1)(c), (3) and (5) (maximum penalty of $10,000 fine; three months disqualification).}

6. Sentencing Act 2002, s 71(1)(a) (maximum penalty of three months imprisonment or a $1,000 fine). He had served a total of 207.5 hours and 72.5 hours of community work remained.

⁷ _{Police v Watt DC Dunedin CRI-2014-021-1906, 26 September 2014.}

WATT v NEW ZEALAND POLICE [2014] NZHC 3055 [2 December 2014]

The offending

[2] On 9 July 2014 Mr Watt was riding a motorcycle on Great King Street in Dunedin. A police car activated its red and blue flashing lights and siren. Mr Watt accelerated away. His speed at times exceeded 100 km/h. He drove up the wrong way of a one-way street and went through a stop sign without slowing down. This was all within a 50 km/h area in medium traffic. Mr Watt lost control of his motorcycle and crashed.

[3] A police officer chased Mr Watt on foot. As he reached him, Mr Watt took his helmet off and began swinging it at the officer’s head. He struck the officer several times on his arm and the right side of his head. He then grabbed the officer and tripped him up, causing him to stumble to the ground. He again swung his helmet threateningly as the officer approached him. The officer suffered grazes, bruises and tenderness to his arm and face.

[4] Mr Watt was apprehended. A search was conducted of his backpack. Police found 69 small bags of cannabis, each weighing approximately a gram ($20 bags), as well as eight slightly larger bags containing three or four grams ($50 bags).

The offender

[5] Mr Watt was 19 at the time of the offending. He was unemployed and had substance abuse issues. He wrote a letter to the Court where he apologised for his behaviour but suggested that the facts against him had been exaggerated.

[6] He told the pre-sentence report writer that he sold drugs as a short term solution to his financial situation, and described the task as stressful. He said that the decision to react violently to the police officer was not conscious, and that he went into a rage because he was under the influence of MDMA as well as another legal substance which maximises testosterone. As to his breach of community work, he stated that he was living in the bush and had no way to contact staff.

[7] Mr Watt has 13 prior convictions, two of which were entered in the Youth

Court for which he was discharged. Of these convictions, five were for theft, three

were for breach of community work, and Mr Watt also had convictions for burglary by night (involving value of over $5,000), wilful trespass and driving without a license. The Youth Court matters were for possession of a knife in a public place and assault with intent to injure. All of these matters had led to community based sentences.

District Court judgment

[8] The Judge considered that the cannabis offending fell within the middle to the higher end of category 2 of R v Terewi.⁸ He imposed a starting point of three years imprisonment for the drug offending. For the “assault on the police officer and connected offending”, he imposed a starting point of nine months imprisonment. On the driving charges, he imposed a starting point of three months imprisonment. On the breach of community work, he imposed a starting point of two months imprisonment.

[9] Cumulatively, that led to a total starting point of four years and two months imprisonment. The Judge reduced the starting point by eight months for totality, taking it down to three years and six months imprisonment. Further discounts of 11 months and four months were given for Mr Watt’s guilty plea and youth, leading to an end sentence of two years and three months. That term was imposed on the cannabis offending. Concurrent sentences were imposed in respect of the other offending. No further penalty was imposed for remission of Mr Watt’s fines of

$4,350.

Appeal grounds

The starting point for the cannabis offending

[10] It is agreed by counsel that the starting point adopted for the cannabis offending was too high. The cannabis offending was relatively small scale. It fell at

⁸ R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA).

the bottom end of category 2. This is confirmed by a review of a selection of cases.⁹

A starting point of two years imprisonment was appropriate.

Double counting

[11] Counsel for Mr Watt submits that the Judge double-counted the driving offending. Counsel refers to the Judge’s comment that he was imposing a starting point of nine months for the “assault on the police and the connected offending.” The Judge goes on to refer to a starting point of three months imprisonment for driving whilst disqualified and dangerous driving. The submission is that “the connected offending” must be a reference to the driving offending and therefore the Judge has double-counted that offending.

[12] I do not accept that submission. It is not entirely clear what the Judge meant by “the connected offending”. It may have been meant as a reference to the aggravated aspect of the assault, namely that it was with intent to avoid arrest. It may have been intended to refer to the failing to stop offence. In any event, it is clear that it did not relate to the driving whilst disqualified and dangerous driving because the Judge referred to those offences in the very next sentence and considered that a three month starting point was appropriate for them. Moreover, the nine month starting point which the Judge took for the “assault on the police and the

connected offending” was not out of range for the aggravated assault.¹⁰

Uplift for breach of community work

[13] Counsel for Mr Watt submits that the Judge’s uplift of two months for the breach of community work was too high. The maximum penalty is three months imprisonment, and although Mr Watt has three previous convictions for breach of

_{community work he had completed 207.5 of the 280 hours imposed on him.}

⁹ This case is comparable to R v Matthews [2013] NZHC 119 and Police v Ratahi [2013] NZHC 1657 (where starting points of two years imprisonment were taken). It is less serious than R v Shand [2013] NZHC 3024; R v Gray [2009] NZCA 31; R v Bowman HC Palmerston North CRI-2008-

054-5896, 13 May 2009; and Savage v Police [2014] NZHC 590 (where starting points of two years and six months imprisonment were taken). It is also less serious than R v Scott CA170/05,

9 November 2005; Police v Galyer [2012] NZHC 1806; and R v Mann HC Invercargill CRI-

_{2008-025-4692, 5 May 2009 (where starting points of three years imprisonment were taken).}

¹⁰ See, for example, R v Mahenga HC Whangarei CRI-2011-088-2950, 12 December 2011 where a nine month uplift was taken.

Counsel for the respondent accepts that the two month uplift was stern, but notes that this was against the background of Mr Watt being sentenced for breaches of community work just twelve days beforehand (at which time 80 hours was added to an earlier sentence of 200 hours community work).

[14] I accept the submission for Mr Watt that the two month uplift was too great given the substantial compliance with the sentence. The matters referred to by the respondent made an uplift appropriate, but no more than one month was warranted.

Overall sentence

[15] Taking a starting point of two years imprisonment on the cannabis offending, and adding an uplift of nine months for the aggravated assault, an uplift of three months for the driving offending and one month for the breach of community work, gives an overall starting point of three years and one month. As counsel for Mr Watt accepts, the Judge’s totality adjustment was relatively generous and with a lower overall starting point any totality adjustment should be less. Counsel for the respondent submits the Judge could have imposed an uplift because the breach of community work was committed while Mr Watt was on bail on the other offending.

[16] In my view a small adjustment should be made for totality. I consider it is not appropriate to impose an uplift because the breach of community work was committed on bail, given the relatively minor nature of the offending. I consider that before mitigating factors an overall starting point of two years and 11 months imprisonment was appropriate.

[17] From that starting point I consider a three month reduction should be made for youth.¹¹ From two years and eight months, Mr Watt is entitled to a 25 per cent discount for his early guilty pleas. That leaves an end sentence of two years

_{imprisonment.}

11. The Judge’s more generous discount for youth was appropriate in respect of the longer starting point he arrived at.

Home detention

[18] The end sentence is one where home detention can be considered. Counsel for Mr Watt says that there is a suitable address (his father’s), but for reasons unknown, this address had not been fully explored in the pre-sentence report. Counsel for the respondent submits that Mr Watt is not a suitable person for home detention because he was not living at the bail address at the time of his offending and because of his non-compliance with community work sentences as indicated by his convictions for breaches of those sentences.

[19] I consider that Mr Watt should be given the opportunity to show he can comply with a sentence of home detention. He is a relatively young man. He has never been sentenced to imprisonment before. Nor has he previously been sentenced to community detention or home detention. The time he has already served in imprisonment will hopefully have been a wake-up call for him. Therefore I consider that his counsel’s request that I adjourn the appeal to allow the opportunity for Mr Watt to put forward a suitable home detention address is appropriate.

Result

[20] The appeal is formally adjourned for 10 days solely to enable Mr Watt the opportunity to put forward a suitable home detention address. If a suitable address is available counsel are to make submissions on the appropriate term of a home detention sentence in light of the time Mr Watt has already spent in custody. If a suitable address is not forthcoming, Mr Watt’s sentence will be quashed and replaced with a sentence of two years imprisonment. Counsel may also put forward conditions that should apply to the sentence whether it is a sentence of home detention or a sentence of two years imprisonment.

Mallon J