Gebremedhin v Police [2018] NZHC 2824 (31 October 2018)

Last Updated: 9 November 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-323 [2018] NZHC 2824

BETWEEN	KALAYU GEBREMEDHIN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	30 October 2018
Counsel:	J Grainger for Appellant K R Muirhead for Respondent
Judgment:	31 October 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 31 October 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ...............................

Solicitors: Meredith Connell, Auckland

GEBREMEDHIN v POLICE [2018] NZHC 2824 [31 October 2018]

Introduction

[1] Mr Gebremedhin pleaded guilty to failing to answer bail, possessing non- approved psychoactive drugs, possessing medicine without an excuse, possessing a class C drug, wilful damage and disorderly behaviour. He was sentenced to nine months’ imprisonment. He appeals this sentence as manifestly excessive. A table of the charges and corresponding sentences was helpfully produced by the Police and is reproduced as an appendix to this judgment.

[2] At the conclusion of argument, I indicated that I would allow the appeal and substitute a sentence of three and half months. My reasons follow.

Facts

[3] The respondent provided a helpful summary of the facts. I largely adopt it. There are three periods of offending.

The June offending

[4] On 16 June 2017, the Police conducted a bail check at a property in Avondale. They smelled freshly burnt synthetic cannabis coming from the garage. They entered the garage. They saw synthetic cannabis in a point bag and two home-made bongs on a table next to Mr Gebremedhin.

[5] Mr Gebremedhin then verbally abused Police and struggled with Police while he was being arrested. He told the two Police constables that “I remember your faces, when I’m out I’m going to get you outside of work”. He continued to threaten Police while being processed.

[6] Mr Gebremedhin subsequently entered guilty pleas to:

(a) Possessing a non-approved psychoactive product; and

(b) Speaking threateningly.

The September offending

[7] Police visited an address on an unrelated matter on 18 September 2017. They found Mr Gebremedhin sleeping on a couch. He admitted ownership of two snap-lock plastic bags containing bath salts (a class C controlled drug) and a sleeping pill.

[8] Mr Gebremedhin subsequently entered guilty pleas to:

(a) Possessing a restricted medicine without reasonable excuse; and

(b) Possessing a class C controlled drug.

[9] On 5 September 2017, Mr Gebremedhin was bailed to appear at Auckland District Court. He failed to appear. He later entered a guilty plea to failing to answer District Court bail. He was subsequently released on bail.¹

The December offending

[10] Mr Gebremedhin got into a taxi on Shortland Street at about 9 pm on 29 December 2017. Because Mr Gebremedhin appeared very intoxicated, the driver asked him to choose a different taxi. Mr Gebremedhin became angry and abusive. The driver got out and called the Police.

[11] Mr Gebremedhin started kicking and throwing things around the taxi. He got out and poured beer on to the taxi. He punched a side mirror causing it to break. He was still chasing the driver around the taxi when Police arrived.

[12] Mr Gebremedhin entered guilty pleas to charges of:

(a) Wilful damage; and

(b) Disorderly behaviour.

1. There appears to be no summary of facts available for this offending. This description is based upon the charging documents and submissions from counsel.

Sentencing

[13] For sentencing purposes, the Judge broke the offending into two parts. The first part comprised the failure to answer bail, and the drug offending. The second part comprised the wilful damage and disorderly behaviour, known as the December offending. On the first part, the Judge took the failure to answer bail as the lead charge. His start point for this offending was four months. He uplifted this by two months to account for the drug offending. The Judge then added a further two months for offending while on bail and for Mr Gebremedhin’s prior convictions (of which there were many). He applied a one month (12.5 per cent) discount for guilty plea. This resulted in an end sentence of seven months. The Judge adopted a two-month one week start point reduced by one week for guilty plea (a 10 per cent discount) for the December offending. This resulted in a cumulative sentence of nine months.

Jurisdiction

[14] An appeal will be successful only if the appellant can point to an error, either intrinsic to the Judge's reasoning, or because of additional material submitted on the appeal which vitiates the sentencing decision of the Court below.² Unless there is a material error in sentence, for example, that it is manifestly excessive, manifestly inadequate, or wrong in principle, an appellate court will not intervene.

The submissions

[15] Mr Grainger for Mr Gebremedhin contends that the Judge’s decision is manifestly excessive on its face. He notes that a four month start point for a single failure to answer bail is unprecedented, and that the drug possession charges would normally attract a non-custodial sentence. An uplift for prior offending, he accepts, is appropriate, but excessive in this case given the excessive start point. The December offending, he says, should really have only attracted a one month cumulative sentence.

[16] The respondent accepts the sentence is harsh but within range:

² Tutakangahau v R [2014] NZCA 279 at [29]- [31].

(a) The sentence for the bail offending, at one third of the maximum, was available to the Judge.

(b) The two-month sentence on the drug charges was available though at the upper end.

(c) The two-month uplift for Mr Gebremedhin’s offending while on bail and very poor conviction history was also within range.

(d) A two-month cumulative sentence for the wilful damage offending was well within range.

Analysis

[17] It is common ground the Judge erred in assuming two bail breaches rather than one. I apprehend this error may have led the Judge to take a strongly adverse view of Mr Gebremedhin, particularly when added to his poor conviction and compliance history. But Mr Gebremedhin was in fact facing only one charge for bail breach. Furthermore, as counsel I think accept, it can be inferred it was not a serious bail breach because he was subsequently released on bail. I am therefore unable to support a starting point of four months for the failure to answer bail. It is manifestly excessive. It is not supported by authority.³ A starting point in the order of one to two months (at most) was justified for this single breach.

[18] This then has a knock-on effect in terms of the subsequent uplifts. A 100 per cent uplift (of two months) for offending that presumptively attracts a non-custodial sentence is excessive,⁴ as is a further 50 per cent uplift (of two months) for prior convictions and offending while on bail. For my part, a combined uplift of 50 per cent (or one month) on a start point of two months for both these factors is appropriate. A two month, one week cumulative sentence for the December offending was however within range.

3. See for example, R v Walters [2012] NZHC 1750 at [26], where a conviction and discharge was imposed for failing to appear. In Williams v Police [2014] NZHC 2622 at [23], a one month uplift on a sentence of two years seven months was imposed for failing to appear. In Dick v Police [2014] NZHC 434 at [21], failing to appear attracted a one month uplift on a sentence of two years.

⁴ Misuse of Drugs Act 1975, s 7(2).

[19] I am unable to agree with the Judge’s approach to the guilty plea discounts. The guilty plea for the bail and drug related offending was given at the first opportunity. The guilty plea on the December offending was also given immediately on the amendment of the charges. The starting point for discount should have been 20- 25 per cent for both sets of offending.

[20] The respondent contends that two factors militate the extent of the guilty plea discount – the strength of the Crown case, and the delay in sentencing caused by Mr Gebremedhin’s failure to comply with procedural requirements. But the strength of the Crown case is attributable in part to Mr Gebremedhin’s confession (i.e. early admission of guilt) and I do not consider conduct after entry of plea, which does not bear on the admission of guilt, should reduce the guilty plea discount.⁵ Accordingly, a 20 – 25 per cent discount should have been afforded for the pleas.

[21] In the result, the Judge’s sentence of nine months is to be compared with my assessment of sentence at about three – four months after guilty plea discount. While the Judge’s firm stance is understandable, the cumulative effect of his incorrect start point and a stern approach to uplifts has meant that the sentence overall is manifestly excessive.

Outcome

[22] The appeal is allowed. The sentence of nine months is set aside. I substitute a sentence of three and a half months.

5. It might however be a personal aggravating factor, but this was not argued either in the District Court or before me so I say no more about it.

Schedule: Table of charges for which Appellant was sentenced on 4 October 2018

	CRN suffix	Offence date‘	Offence	Maximum senteńce	Sentenće’irńposed
1	8023	16 June 2017	Possessing non-approved psychoactive product (synthetic cannabis) (Psychoactive Substances Act 2013, s 71)	$500 fine	Convicted and discharged”
2	8026	16 June 2017	Speaking threateningly (Summary Offences Act 1981, s 4(1)(b))	$1,000 fine	Convicted and discharged
3	2958	18 September 2017	Possessing prescription medicine without reasonable excuse (sleeping pill) (Medicines Act 1981, ss 43(1), 73, and 78)	3 months‘ imprisonment or $500 fine	Two months’ imprisonment (concurrent on 3394)
4	2959	18 September 2017	Possessing a class C controlled drug (bath salts) (Misuse of Drugs Act 1975, s 7)	3 months’ imprisonment or $500 fine	Two months’ imprisonment (concurrent on 3394)*
5	3394	20 September 2017”*	Failure to answer District Court bail (Bail Act 2000, s 38)	1 year imprisonment or $2,000 fine	Seven months’ imprisonment
6	7879	29 December 2017	Wilful damage (Summary Offences Act 1981, s 11(1))	3 months’ imprisonment or $2,000 fine	Two months’ imprisonment (concurrent with 7880 and cumulative on 3394)
7	7880	29 December 2017	Disorderly behaviour (Summary Offences Act 1981, s 3)	3 months’ imprisonment or $2,000 fine	Two months’ imprisonment (concurrent with 7879 and cumulative on 3394)
	0404	16 August 2017	Failure to answer District Court bail (Baił Act 2000, s 38)	1 year imprisonment or $2,000 fine	Remanded in custody until 19 October 2019 at 10am (charge subsequently withdrawn)

* Judge Gibson’s sentencing notes do not expressly refer to these two CRNs. The sentences imposed are taken from the Court’s record hearing sheet and the Appellant’s criminal and traffic history [Tab 5].

** The charging document offence description notes that the Appellant was released on bail on 5 September 2017 but failed to appear as specified in the notice of appeal. The charging document states that the offence date is 16 June 2017. This must be incorrect in light of the offence description.