FURZE v NEW ZEALAND POLICE [2019] NZHC 162

FURZE v NEW ZEALAND POLICE [2019] NZHC 162 [14 February 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-000106[2019] NZHC 162BETWEEN BENJAMIN SIMON FURZEAppellantAND NEW ZEALAND POLICEDEPARTMENT OF CORRECTIONSRespondentsHearing: 14 February 2019Appearances: M A Barrell for AppellantC C White for RespondentJudgment: 14 February 2019ORAL JUDGMENT OF GENDALL JIntroduction[1] On 5 October 2018 Judge O'Driscoll in the District Court sentenced theappellant Benjamin Furze to 25 months' imprisonment and provided for an 18 monthslicence disqualification on driving offending and breach of release conditions.Mr Furze was convicted of two charges of driving while disqualified (possibly aneighth charge), one charge of drink-driving, one charge of dangerous driving, onecharge of failing to stop, and one charge of breaching release conditions. Mr Furzeappeals his sentence on the basis that it was too high and not in conformity with similarcases, that the Judge failed to give Mr Furze credit for personal mitigating factors andthat the Judge erred in not applying a higher discount for Mr Furze's early guilty plea.Facts[2] Turning to the facts in this appeal, on 8 June 2018 at about 5:15 a.m. Mr Furzewas stopped by Police on Cashel Street, Christchurch, while driving and wasdiscovered to be driving with an evidential breath test reading of 556 micrograms ofalcohol per litre of breath. At the time, Mr Furze was on parole having been releasedon 31 January 2018 with a condition that he not consume alcohol. Thus, Mr Furzewas charged with drink-driving and with breaching release conditions. He was grantedbail by the District Court.[3] Less than one month later, at 5:04 a.m. on 6 July 2018, Mr Furze was drivingagain on Cashel Street, Christchurch, when Police attempted to stop him by activatinga police car's lights and siren. In response, Mr Furze accelerated away, reachingspeeds of up to 90km/h on residential streets in Christchurch and crossing over trafficislands as he went. Mr Furze ran over spikes deployed by police, bursting a tyre ofhis car causing him to mount the curb. He then came to a stop by running into a brickfence. He attempted to continue to flee Police on foot, but was apprehended andarrested.District Court decision[4] Turning now to the District Court decision, Judge O'Driscoll there approachedsentencing by adopting a starting point for the offending relating to the two separatedriving incidents. On the first charge of driving while disqualified on 8 June 2018,His Honour adopted a starting point of 12 months' imprisonment. In reaching thisstarting point, the Judge considered that the offending amounted to a breach ofMr Furze's release conditions, and that this was his seventh offence of driving whiledisqualified as aggravating factors.1 Judge O'Driscoll then gave an uplift of twomonths for the drink-driving offence, giving a starting point of 14 months in relationto the first driving incident.[5] On the second, 6 July 2018, driving while disqualified offenceJudge O'Driscoll also adopted a starting point of 12 months. This again reflected the1 Police v Furze [2018] NZDC 21226 at [3] – [5].aggravating factors of the breached release condition and the previous driving whiledisqualified offending. To this, His Honour added two months for dangerous drivingand two months for failing to stop. Judge O'Driscoll held that these sentences wereto be served cumulatively, resulting in a total starting point of 30 months'imprisonment.[6] Judge O'Driscoll then gave a discount of five months for Mr Furze's earlyguilty plea, equivalent to a 16.66 per cent reduction. The end sentence imposed onMr Furze was thus 25 months' imprisonment.Principles on appeal[7] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can be properly be justified by accepted sentencing principles".3 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.4SubmissionsAppellant's submissions[8] Turning now to the submissions advanced before me today and appellant'ssubmissions, the appellant argued that his sentence was manifestly excessive becausethe District Court Judge adopted a starting point that was too high, that the Judge failedto make a downwards adjustment for totality, that the Judge failed to take account ofMr Furze's personal mitigating circumstances and that he erred in not providing for ahigher discount for Mr Furze's early guilty plea.2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].[9] Ms Barrell, counsel for the appellant, submitted that a starting point of12 months was too high having regard to comparable decisions. In the first case shehas cited Iwikau v Police, a starting point of 10 months for a seventh driving whilstdisqualified charge and related failure to stop charge was upheld in this Court byWilliams J.5 Counsel highlighted Williams J's comment that "the starting point wasat the top of the allowable range".6[10] Counsel also cited the decision in Peterson v Police, where a starting point of10 months was upheld by Duffy J on appeal for a sixth driving whilst disqualifiedoffence.7 Finally, counsel before me cited Opetaia v Police where Moore J upheld astarting point of 10 months for fifth to eighth driving while disqualified offences,where His Honour also described that 10 months as being "at the top of the range".8[11] In light of these cases, Ms Barrell submitted that in relation to both sets ofdriving offending starting points of between nine and ten months were moreappropriate.[12] Additionally, she suggested the 30 months starting point in total adopted by theJudge was excessive having regard to the totality of the offending, and as such thestarting point should have been adjusted downwards pursuant to the totalityrequirements set out at s 85 of the Sentencing Act.[13] Ms Barrell further submitted that Judge O'Driscoll failed to take into accounta personal mitigating circumstance of Mr Furze, as he was required to do by s 10(1)(e).She said that Mr Furze's motivation to attend drug and alcohol intervention courses,his engagement with Problem Gambling and his attendance at mental health treatmentsessions amounted to "remedial action" under s 10(1)(e).[14] In relation to the early guilty plea discount given by Judge O'Driscoll, counselsubmitted the discount given was insufficient. That five month discount from the30 month starting point equated to a 16.66 discount, as I have noted already. Instead,5 Iwikau v Police [2013] NZHC 2515.6 At [15].7 Peterson v Police (HC) Hamilton CRI-2009-419-11, 20 February 2009.8 Opetaia v Police [2015] NZHC 2532 at [38].counsel submitted a 25 per cent discount in accordance with the decision in Hessell,9was more appropriate.[15] Finally, if this Court was to find that a starting point of less than 24 monthsshould be preferred and this appeal be allowed, counsel submitted that Mr Furzeshould be considered for a sentence of home detention.Respondent's submissions[16] Turning now to the respondent's submissions, Mr White for the respondentcontended that the cases cited in support of Mr Furze's appeal in fact demonstrate thata 12 month starting point was within the appropriate range. Mr White identified thatJudge O'Driscoll considered as aggravating factors that this offending occurred inbreach of Mr Furze's release conditions and was his sixth conviction for this type ofoffending, and that these factors justified a 12 month starting point in light of the casescited.[17] Similar to the first incident in question, counsel here highlighted in relation tothe second incident, that Judge O'Driscoll appears to have taken into account the factthat the offending occurred again while Mr Furze was on bail and had treated this asan aggravating factor. Mr White argued that justified a starting point of 12 months forthe driving while disqualified charge.[18] In relation to Mr Furze's totality submission, Mr White for the respondentsubmitted a totality adjustment here would be inappropriate because Mr Furze has ahistory of failing to comply with court orders, demonstrated again in the offending inthis case, and as such an overall starting point of 30 months for both sets of offendingwas not wholly disproportionate.[19] Mr White also submitted that the Judge was correct in not making a discountfor Mr Furze's rehabilitative steps as His Honour was justified in viewing these stepswith scepticism given Mr Furze's history. Counsel noted that s 10(2)(a) requires thecourt to take into account whether or not any remedial action was "genuine".9 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.[20] On the issue of the discount for an early guilty plea, the respondent's positionis that a five months discount was appropriate because the prosecution case was strong,and as such a full 25 per cent discount in all the circumstances here would beinappropriate.AnalysisStarting point for offending relating to first driving incident[21] Turning to my analysis in this matter and the starting point for offendingrelating to the first driving incident, in Peterson v Police, a starting point of 10 monthswas adopted for driving while disqualified as I have noted. In that case Duffy J statedthat there were no aggravating features particular to the offending.10 Similarly, in thedecision in Iwikau,11 there was no comparable aggravating factor of breaching releaseconditions as in the present case. Both of these cases involved sentencing in relationto the defendants' seventh driving while disqualified charges. In this case, atwo months premium on the starting point, in my view, is appropriate and notdisproportionate to reflect the aggravating nature of the offending breaching releaseconditions and otherwise. A 12 months starting point for the first driving whiledisqualified charge is thus not manifestly excessive, in my view, and it should remainundisturbed.Starting point for offending relating to second driving incident[22] The second driving while disqualified charge shares a similar aggravatingfeature to the first; this is again that the offending occurred while Mr Furze was onbail. Thus, for similar reasoning to the analysis justifying a 12 months starting pointfor the first driving while disqualified charge, a 12 months starting point on this secondcharge, the circumstances of which are also serious, was also appropriate and open tothe Judge.10 Peterson, above n 7, at [9].11 Iwikau v Police, above n 5.Totality adjustment[23] Turning now to a totality adjustment, adjustments for totality are not automaticand I refer to the Court of Appeal decision in Ashcroft v R.12 A totality adjustment isonly required when the end sentence is "wholly out of proportion to the gravity of theoffending".13 In the present case, the second driving while disqualified offence wascommitted by Mr Furze whilst he was on bail for the first driving while disqualifiedcharge. The circumstances of that second set of offending are also, in my view,particularly serious. Mr Furze too has a history of failing to comply with court orders,and that second driving incident only serves to highlight this. This does not suggest alow overall gravity for all offending. Thus, there is nothing to suggest, in my view,that a 30 months starting point for both sets of driving incidents is "whollydisproportionate" to this overall offending, offending which must be seen as seriousgiven Mr Furze's propensity to ignore court orders.Personal mitigating circumstances[24] Turning now to the issue of personal mitigating circumstances,Judge O'Driscoll, in my view, was entitled to decline to give Mr Furze a discount forthe "remedial actions" he has taken. I say this given Mr Furze's history of non-compliance with court orders which suggests he may lack a genuine desire toremediate his behaviour through rehabilitative courses.Early guilty plea discount[25] Turning now to the early guilty plea discount, in Hessell, the Supreme Courtsaid that credit given for an early guilty plea:14must reflect all the circumstances in which the plea is entered, includingwhether it is truly to be regarded as an early or late plea and the strength ofthe prosecution case.12 Ashcroft v R [2014] NZCA 551 at [32].13 Above n 12, at [32].14 Hessell, above n 9, at [74].[26] In the present case, the Judge, in my view, was entitled to allow a discount ofless than the full 25 per cent to take account of the strength of the prosecution case.The 16.66 per cent discount he gave is appropriate in all the circumstances here.Conclusion[27] In conclusion and for all the reasons I have outlined above, Mr Furze's appealis refused in its entirety. The sentence is not manifestly excessive and the Judge'sdecision was justified in all respects. This appeal is dismissed....................................................Gendall JSolicitors:Michelle Barrell & Associates, Barrister & Solicitors, ChristchurchRaymond Donnelly & Co, Christchurch