R v Pelikani [2014] NZHC 930 (6 May 2014)

Last Updated: 18 August 2017

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-008694

CRI-2013-092-009565 [2014] NZHC 930

THE QUEEN

v

_{RICHARD PELIKANI}

Hearing:	6 May 2014
Appearances:	R K Thomson for the Crown A McLean for the Defendant
Judgment:	6 May 2014

_{SENTENCING NOTES OF WOOLFORD J}

Counsel/Solicitors:

Crown Solicitors, Auckland

Public Defence Service, Auckland

R v RICHARD PELIKANI [2014] NZHC 930 [6 May 2014]

Introduction

[1] Richard Pelikani, you appear for sentence today having pleaded guilty to:

(a) one charge of possession of cannabis for supply,¹ which carries a maximum sentence of eight years imprisonment;

(b) one charge of driving while disqualified for the third or subsequent time,² which carries a maximum sentence of two years imprisonment or a fine not exceeding $2,000 and a minimum disqualification from driving for one year or more;

(c) one charge of procuring a passport with false representation,³ which attracts a maximum sentence of five years imprisonment or a $15,000 fine;

(d) two charges of failing to appear,⁴ which attract a maximum sentence of one year imprisonment or a fine not exceeding $2,000;

(e) one charge of assault with intent to injure,⁵ which attracts a maximum sentence of three years imprisonment; and

(f) one charge of resisting police,⁶ which attracts a maximum sentence of three months imprisonment or a fine not exceeding $2,000.

Facts

[2] On 28 July 2012, you were a passenger in a motor vehicle stopped by a police patrol. A bucket containing five snaplock bags was located in the boot of the

_{car. 179 cannabis tinnies were inside the snaplock bags. A separate snaplock bag}

¹ _{An offence against ss 6(1)(f) and 6(2) Misuse of Drugs Act 1975.}

² _{An offence against ss 32(1)(a) and 32(4) Land Transport Act 1998.}

³ _{An offence against s 32(1) Passport Act 1992.}

⁴ _{An offence against s 37(a) Bail Act 2000.}

⁵ _{An offence against s 193 Crimes Act 1961.}

⁶ An offence against s 23(a) Summary Offences Act 1981.

contained 77.4 grams of cannabis head, making a total of 256.4 grams. $2690.00 in cash was also found. You said the cannabis and cash were yours.

[3] On 2 September 2012, you were driving a motor vehicle that was stopped for the purpose of a licence check. It was revealed that you were driving whilst disqualified.

[4] On 6 September 2012 and 26 October 2012, you failed to appear in the

District Court.

[5] On 19 October 2012, you punched Tautala Su’a in the face, knocking him to the ground. He tried to defend himself and you stomped on his head, knocking him unconscious for 10 – 12 minutes. You fled from the scene. You were pursued by police. During the arrest process, you resisted arrest by throwing your body around and charging a constable.

[6] On 23 January 2013, you applied for an urgent passport. You used the name and date of birth of Sio Sateki Vainikolo, gave the names of the mother and father of Sio Sateki Vainikolo, attached your own photograph and signed the application. Sio Sateki Vainikolo died as a baby in 1988.

Victim Impact Statement

[7] Your victim, Mr Su’a, in relation to the assault with intent to injure charge says that he does not really remember what happened the night you attacked him, he did not know who you were or why you did what you did. He says he hopes you do not do this to anyone else.

Personal Circumstances

[8] I turn now to your personal circumstances. You are 21 years of age and will be 22 next month. You have 22 previous convictions. Relevant to the present offending, 11 relate to driving offences, four relate to breaches of bail, three relate to breaches of sentence, and three are drug related offences.

Pre-sentence report

[9] The pre-sentence report prepared in relation to the assault and resisting police charges records your risk of re-offending as being moderate to high. It is noted that compliance appears to be an issue for you. Factors which have contributed to your offending are your propensity for violence, abuse of alcohol, offending supporting attitude, and sense of entitlement. You say you are motivated and capable of completing an alcohol and drug programme to address your decision making processes while under the influence of alcohol. There is no appropriate address for electronic monitoring and as such the pre-sentence report writer recommends a sentence of imprisonment.

[10] The pre-sentence report prepared in relation to the other offending records that you displayed no sincere remorse or insight into your driving whilst disqualified offending. You minimised your cannabis offending by saying you only sold it to friends in the neighbourhood. The pre-sentence report writer commented that you are “an immature young man who lacks both direction and motivation.” That pre- sentence report writer also recommended a sentence of imprisonment.

Purposes and Principles of Sentencing

[11] In sentencing you today, I have taken into account a number of sentencing purposes and principles as set out in the Sentencing Act 2002. The relevant purposes I have taken into account are:

(a) holding you accountable for the harm done to your assault victim, Mr Su’a, and the community by the offending;

(b) promoting in you a sense of responsibility for, and acknowledgement of, that harm;

(c) denouncing your conduct;

(d) deterring you and other persons from such offending; (e) protecting the community from you; and

(f) assisting in your rehabilitation and reintegration.

[12] I have also taken into account the principles of sentencing set out in s 8 of the

Sentencing Act.

Submissions

Informant submissions

[13] Ms Thomson, for the Crown, suggests that the starting point for the cannabis offending should be around two years and six months imprisonment. She has identified the following features as aggravating: the commercial element, the extent of harm to the community, and premeditation. She submits that there needs to be an uplift to reflect your prior cannabis related offending, for which you have already served a sentence of imprisonment.

[14] To acknowledge the late guilty plea, Ms Thomson submits that a five to

10 per cent discount is available.

[15] The supplementary submissions by Ms Thomson acknowledge that the assault charge could have warranted a starting point of between one and two years imprisonment by itself. However, given the number of charges you are being sentenced for, in light of the totality principle, an uplift of three to six months imprisonment would be appropriate, according to Ms Thomson.

[16] Ms Thomson refers to the cases of R v Lee⁷ and Burns v Police⁸ in helping assess the appropriate starting point for the passport offending. The Informant submits that a six month starting point would be appropriate (or a four month uplift if the sentences are concurrent). At the time of offending, you were on bail for breaching community work, resisting police and assault with intent to injure and an uplift would be warranted. However, Ms Thomson made this submission prior to the assault and resisting counts becoming a part of this sentencing. Considering the fairly prompt guilty plea, Ms Thomson submits that a 20 per cent reduction is

_appropriate.

⁷ _{R v Lee HC Auckland CRI-2009-404-231, 23 October 2009.}

⁸ Burns v Police HC Wellington CRI-2005-485-125, 25 October 2005.

[17] In relation to the driving and bail offending, Ms Thomson points out that this is your fourth driving while disqualified conviction, having been sentenced to a fine in 2009 and community work twice in 2010. You also have a history of driving while unlicensed.

[18] Ms Thomson submits that if a sentence of imprisonment is imposed, an uplift of two months would be appropriate to mark the offences.

[19] The Informant also seeks orders for the forfeiture of the cash seized and for the destruction of the cannabis.

Defence submissions

[20] Your counsel, Ms McLean, submits that the lead offence should be the possession for supply charge and that a starting point of approximately two years imprisonment should be adopted. An uplift of between six and 12 months imprisonment would be appropriate to account for the totality of the remaining offending, according to Ms McLean.

[21] Your counsel accepts that the cannabis offending was for a commercial purpose, but at the lower end of category two as there is no evidence of on-going offending or of organised offending, such as tick lists or scales. Your lawyer submits that there is no indication that the failed application for a passport was intended to be used in a way ancillary to other offending, apart from a clumsy attempt to avoid detection by the authorities.

[22] As for mitigating factors, the defence submits that there are no mitigating factors in terms of the cannabis charge, however, for the assault charge the conduct of the victim as the original assailant is mitigating.

[23] The defence refers to a number of cases to assist with setting a starting point for the cannabis charge.⁹ Based on these cases the defence submits that a starting

⁹ Police v Bevins [2013] NZHC 2066, R v Tini [2013] NZHC 2184, R v Cooper [2013] NZHC

170, R v Te Huia [2013] NZHC 1326, R v Hori [2013] NZHC 235, R v Karipa [2013] NZHC

525, R v Ririnui [2012] NZHC 3053, and R v Dewar [2013] NZHC 2010.

point of around two years imprisonment would be appropriate for the lead charge. The defence agrees with the cases that the Informant has pointed to in relation to the passport offending. Your counsel accepts that the fact that the offences were committed whilst you were on bail is an aggravating factor.

[24] Your counsel puts forward mitigating factors of your age, the fact that you have not been subject to a supervisory sentence and have good rehabilitative prospects, you have no prior convictions for violence, you pleaded guilty to all charges, and have expressed remorse. In that regard, I have been provided today with a letter from you Mr Pelikani, and I do accept that you are now remorseful for your actions and that you intend to use the time in prison to better yourself. I trust that you will follow through on those sentiments, Mr Pelikani.

[25] Your lawyer finally submits that a total end sentence of between two years to two years and six months imprisonment would be appropriate.

Sentencing approach

[26] I come now to fixing sentence. The approach I intend to follow in arriving at the appropriate sentence is that established by the Court of Appeal in several well- known cases.¹⁰ In brief, it involves considering the circumstances and seriousness of the offending you committed and setting what is known as the starting point with the aid of any guideline decisions or comparable cases. I then need to consider whether there are any mitigating features relevant to you which might reduce that starting

point.

[27] I intend to sentence you cumulatively in respect of the cannabis offending, assault with intent to injure, and passport offending as each count is quite unconnected. This means I will impose a separate sentence for each offence and you will serve a total sentence made up of those sentences. However, I am mindful that your overall cumulative end sentence must not be out of proportion with the gravity of your offending. The sentence must be proportionate to the totality of the

_offending.

¹⁰ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA); R v Clifford [2011] NZCA 360; [2012] 1 NZLR 23 (CA).

Cannabis offending

Tariff case

[28] It is accepted by both parties that the current offending falls within category 2 of R v Terewi which applies to small scale commercial offending. Terewi suggests a starting point of between two and four years imprisonment.

Relevant cases

[29] I have been referred to R v Tini, where a starting point of 25 months imprisonment was taken for possession of 68 grams of cannabis;¹¹ R v Hori, where a starting point of two years imprisonment was adopted for possession of 275 grams of cannabis, 17.08 grams of cannabis seeds, 17 prepackaged tinnies and cash;¹² and Police v Bevins, where a starting point of two years and six months imprisonment was taken when the offender was found in possession of 123 tinnies (totalling

_{114.83g), two cellphones and a total of $23,435 cash.}¹³

Setting a starting point

[30] I intend to adopt a starting point of two years and six months imprisonment. Your case is similar to Police v Bevins, though you were in possession of a greater number of tinnies, but a lesser amount of cash.

Adjusting the starting point

[31] You have two previous convictions for cannabis and were serving your sentence of community work when the current offending occurred. A three month uplift is appropriate to mark your continued offending. I do acknowledge, however, that your age is a mitigating factor. You have been described by the pre-sentence report writer as immature, lacking in direction and motivation. You intend to gain employment and “go straight”, but demonstrate little insight into your offending. It

_{has been recognised that there are age related neurological differences between}

¹¹ _{R v Tini [2013] NZHC 2184.}

¹² _{R v Hori [2013] NZHC 235.}

¹³ Police v Bevins [2013] NZHC 2066.

young people and adults, and young people may be more impulsive than adults.¹⁴ I will therefore discount your sentence by 10 per cent to take account of your age. I do not consider that a discount for remorse is appropriate.

[32] Your guilty plea was not entered until the day of the defended hearing due to disagreement over the quantity at issue. This disagreement was resolved the day of the defended hearing. A discount of 10 per cent is appropriate.

[33] This results in an end sentence of two years and two months imprisonment on the charge of possession of cannabis for supply.

Assault with intent to injure and resisting police

Tariff case

[34] There is no tariff case for assault with intent to injure.¹⁵ However the tariff case for injuring with intent to injure, R v Harris, is useful. ¹⁶

[35] R v Harris sets out guideline sentencing bands for the offence of injuring with intent to injure:¹⁷

• Band one: where there is little injury and few aggravating features and where the sentencing judge considers the culpability to be at a level which might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate: Taueki at [27];

• Band two: where the injuries are moderate, sentences of up to two years imprisonment can be justified;

• Band three: for serious injury, sentences from 18 months imprisonment up to the maximum of five years imprisonment can be justified (subject

_{to complying with s 8(c)(d) of the Sentencing Act 2002).}

¹⁴ _{Churchward v R [2011] NZCA 531, (2011) 24 CRNZ 446.}

¹⁵ _{R v MsCaslin HC Napier CRI-2007-020-2772, 7 May 2008.}

¹⁶ _{R v Harris [2008] NZCA 528.}

¹⁷ At [10].

Relevant Cases

[36] In Pan v Police the offender restrained the victim and punched him twice in the head.¹⁸ The co-offenders then started punching and kicking the victim on the ground. Some injuries were sustained. A starting point of two years and three months imprisonment was considered appropriate.

[37] Although dealing with a charge of injuring with intent to injure, the case of R v Moa is relevant. It is similar to the current situation in that there was a fight, and the defendant claimed he was acting in self defence. The victim was knocked unconscious and then while on the ground the offenders stomped on his head. Taking into account the violence directed at the head, and the fact that the kicking to the head occurred when the victim was unconscious and therefore there was no need for self defence, the Judge held that a starting point of two years imprisonment was appropriate.

[38] In Mori v Police the offender and a friend made an unprovoked attack on the victim.¹⁹ The attack was started by the co-offender, but the offender then joined in hitting the victim in the head and later punching and kicking her until she fell to the ground. A starting point of eighteen months imprisonment was appropriate in that case.

Setting a starting point

[39] Based on the cases I have referred to, the assault with intent to injure would attract a sentence of around 14 months imprisonment on its own. The present facts are most similar to Moa, but with less serious injuries meaning that a starting point of less than two years is appropriate. The present offending is also less serious than Mori, as that attack was more prolonged with more serious injuries.

Adjusting the starting point

[40] An uplift is necessary to reflect the related charge of resisting police, as you fled the scene under the pursuit of officers and resisted by throwing your body

¹⁸ _{Pan v Police HC Auckland CRI 2005-404-325 3 February 2006.}

¹⁹ Mori v Police [2013] NZHC 225.

around and charging a policeman. I uplift the sentence for assault with intent to injure by one month to reflect this charge. I discount the sentence by 10 per cent to reflect your age.

[41] You pleaded guilty to these charges on 28 November 2013, a year after the offending. I therefore further reduce the sentence by 10 per cent.

[42] This results in an end sentence of 12 months imprisonment.

Passport offending

Tariff Case

[43] There is no tariff case. However, it is important to acknowledge that in June

2002 the maximum penalty for making false representations on a passport application increased from three months imprisonment or a $2,000 fine to five years imprisonment or a $15,000 fine. In accordance with R v Spartalis if Parliament increases a maximum penalty the Courts should have regard to the intention to change sentencing levels.

Relevant cases

[44] In R v Lee the offender applied for a passport in the name of a New Zealand citizen claiming that he had undergone gender re-assignment surgery.²⁰ No passport was obtained. A six month imprisonment starting point was held to be appropriate.

Setting a Starting Point

[45] A starting point of six months imprisonment is appropriate.

Adjusting the Starting Point

[46] You have committed one dishonesty offence previously in that you did give false details to the Police, but I do not intend to impose an uplift for this. However,

_{the offence was committed whilst on bail for breaching community work, resisting}

²⁰ Lee v Police HC Auckland CRI-2009-404-231, 23 October 2009.

Police and assault with intent to injure. This is an aggravating factor which warrants an uplift of one month. I will impose a 10 per cent discount for your age, again.

[47] You are entitled to a guilty plea discount of 25 per cent.

[48] This would result in a sentence of five months imprisonment.

[49] Imposing the sentences for the cannabis offending, assault with intent to injure and passport offending cumulatively results in a sentence of three years and seven months imprisonment.

Driving and failure to appear offending

[50] This is your fourth driving whilst disqualified conviction, having previously been sentenced to a fine in 2009 and community work twice in 2010.

[51] Both the Crown and the defence submit that an uplift on the final imprisonment sentence is the appropriate way to acknowledge these charges.

[52] I would ordinarily uplift the sentence by three months in recognition of this further offending. This results in a sentence of three years and ten months imprisonment.

Totality

[53] However, I must now stand back and consider whether the end sentence I have reached reflects the totality of your offending. I am of the view that a sentence of three years and ten months imprisonment is, when viewed overall, excessive for your offending and I consider that a sentence of three and six months imprisonment is a more proportionate response. I will accordingly reduce the otherwise appropriate sentences on procuring a passport and driving whilst disqualified each by two months imprisonment.

Result

[54] Mr Pelikani, please stand.

[55] On the count of possession of cannabis for supply, you are sentenced to two years and two months imprisonment. I make an order that the cash found be forfeited to the Crown and that the cannabis be destroyed.

[56] On the count of assault with intent to injure you are sentenced to 12 months imprisonment, to be served cumulatively upon the sentence for possession of cannabis for supply.

[57] On the count of resisting arrest you are sentenced to one months imprisonment, to be served concurrently with the sentence on assault with intent to injure.

[58] On the count of procuring a passport, you are sentenced to three months imprisonment, to be served cumulatively.

[59] On the count of driving whilst disqualified, you are sentenced to one months imprisonment, to be served cumulatively.

[60] On the two counts of failing to appear, you are also sentenced to two months imprisonment, to be served concurrently.

[61] Your end sentence is therefore one of three years and six months imprisonment. I also order that you are further disqualified from holding or obtaining a drivers licence for one year, commencing from the date you leave prison.

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

Woolford J