CRUDEN v NEW ZEALAND POLICE [2023] NZHC 2073

CRUDEN v NEW ZEALAND POLICE [2023] NZHC 2073 [7 August 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-109[2023] NZHC 2073BETWEEN BRENDAN JAMES CRUDENAppellantAND NEW ZEALAND POLICERespondentHearing: 3 August 2023Appearances: K L Chalmers for AppellantG E R Alloway for RespondentJudgment: 7 August 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 7 August 2023 at 10.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] Brendan Cruden pleaded guilty to the following charges:(a) unlawfully using a motor vehicle;1(b) escaping police custody;2(c) possession of a weapon;3(d) possession of utensils;4(e) possession of a class A drug;5(f) possession of instruments for conversion;6 and(g) breach of release conditions.7[2] On 25 May 2023, he was sentenced in the District Court to 26 months'imprisonment and ordered to pay reparation of $1,026.77.8 He appeals his sentenceon the basis that the Judge:(a) failed to apply a greater discount to reflect mitigating factors; and(b) failed to adjust the end sentence to that of the least restrictive outcometo reflect the purposes and principles of sentencing.[3] A further ground of appeal, being failure to apply a discount of 20 per cent toreflect the appellant's guilty plea, was not pursued at hearing with Ms Chalmers1 Crimes Act 1961, s 226(1) – maximum sentence: seven years' imprisonment.2 Section 120(1)(c) – maximum sentence: five years' imprisonment.3 Section 202A(4)(a) – maximum sentence: three months' imprisonment.4 Misuse of Drugs Act 1975, s 13(1)(a) and (3) – maximum sentence: one year imprisonment, $500fine.5 Section 7(1)(a) and (2) – maximum sentence: six months' imprisonment, $1000 fine.6 Crimes Act, s 227 – maximum sentence: one year imprisonment.7 Sentencing Act 2002, s 96(1) – maximum sentence: one year imprisonment, $2000 fine.8 R v Cruden [2023] NZDC 11105.accepting that using the sentencing methodology in Moses v R, the discount affordedwas 25 per cent.9Facts[4] Within no more than a month and a half of Mr Cruden's release from prison on20 June 2022, he repeatedly failed to report to his probation officer as directed.[5] Between approximately 6:00pm on Sunday 20 November and 11:30am onMonday 21 November 2022, the victim's motor vehicle was stolen from a Dunedinaddress. During the afternoon of Monday 21 November, the stolen vehicle wasinvolved in a fleeing driver incident in Timaru. At approximately 5:40pm, Mr Crudenwas seen driving the stolen vehicle between Rolleston and Christchurch. He arrivedin Christchurch and parked the stolen vehicle in the Northlands Mall carpark.[6] Police entered the carpark and activated blue and red lights, blocking the stolenvehicle in the carpark. Mr Cruden immediately got out of the vehicle and ran towardsthe mall entrance. Police clearly shouted at him that he was under arrest and that hehad to stop, however he did not. Police pursued him in the mall, again telling him thathe was under arrest. However, Mr Cruden refused to comply with this and ran intothe Countdown supermarket. Police observed a folded flick knife in his right handand directed him to release the knife. He again failed to comply with theseinstructions. He was eventually stopped by police, although he continued to resistarrest and was eventually placed in handcuffs.[7] Police invoked search powers under the Search and Surveillance Act 2012.Under the driver's seat, Police located a 20-centimetre silver knife. In a compartmentto the right of the driver's seat, Police located a glass pipe used for smokingmethamphetamine. Police located one tab of LSD in his wallet in a small clearsnaplock bag.9 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.District Court decision[8] Judge O'Driscoll noted that Mr Cruden is aged 39 and has accrued132 convictions since 2001.[9] There was no suitable address for serving an electronically monitored sentence.Mr Cruden's counsel submitted, however, that taking into account the time spent incustody, the Court could impose a sentence of intensive supervision. If he was subjectto an outpatient programme, he could deal with his ADHD and his impulsivebehaviour.[10] The Judge adopted a starting point of two years' imprisonment. This wasincreased by six months to reflect the fact the offending was committed while subjectto release conditions. A further six months was added due to the previous convictionsfor similar offending. The sentence was then reduced by four months to take intoaccount Mr Cruden's personal circumstances and reduced again by six months to takeinto account the guilty plea.[11] This resulted in a sentence of imprisonment of 26 months.[12] In addition, an order was made for reparation in the sum of $1026.77.Principles on appeal[13] 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.10 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 properly be justified by accepted sentencing principles".11 It is onlyappropriate for this Court to intervene and substitute its own views if the sentence10 Criminal Procedure Act 2011, ss 250(2) and 250(3).11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].being appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.12SubmissionsAppellant's submissions[14] Ms Chalmers, for Mr Cruden, seeks that the sentence of 26 months'imprisonment is quashed and replaced with a sentence of intensive supervision.[15] In respect of personal mitigating factors, Ms Chalmers said the discount offour months' imprisonment (which she initially calculated as being a discount ofapproximately 11 per cent), did not adequately address the factors raised, and in herwritten submissions, she suggested a total discount of approximately 20 per centshould have been applied. While accepting that the actual discount was just under17 per cent of the starting point for the sentence, she suggested it should be higherthan this to reflect the four mitigating factors she identified.[16] First, the Court did not recognise whether there was a causative link betweenMr Cruden's addiction and his present offending, having regard to the decision ofZhang v R.13 Mr Cruden's alcohol and drug report outlined a history ofmethamphetamine use since his early mid-teens, and continual use since, except forwhen he has been incarcerated. It is submitted that the appellant's conviction historyis littered with dishonesty offending which can easily be seen as offending to fund anaddiction. The causative link of drug addiction to Mr Cruden's actions and behaviouris established firmly enough that a discount of approximately 15 per cent should havebeen applied.[17] Secondly, the Judge failed to take into account Mr Cruden's ADHD diagnosis.It is accepted that the Judge did not have a report before him from a clinicalpsychologist specialising in the areas of ADHD. However, it should have beenconsidered regardless. Mr Cruden has acknowledged his impulsive behaviour andspoke of being open to exploring this diagnosis and seeking assistance. He has attested12 Ripia v R [2011] NZCA 101 at [15].13 Zhang v R [2019] NZCA 507.to using drugs to self-medicate. It is submitted that a discount of approximately5-10 per cent should have been applied.[18] Thirdly, as noted in the alcohol and drug report, Mr Cruden was held hostagewhile serving a prison sentence in 2021. While the persons involved were charged inrelation to this matter, those charges were later withdrawn, which Ms Chalmerssubmits left the appellant with a lack of trust in people and the community. She saysthis is clearly a barrier to the appellant's rehabilitation which needs to be taken intoaccount.[19] The pre-sentence report also noted that the appellant is vulnerable to thepressure of others when in the community and this, too, should have been taken intoaccount.[20] The second ground of appeal is that the Judge erred by failing to considerwhether there was a less restrictive sentence which was more appropriate forMr Cruden. The sentence start points and uplifts are not disputed. However, whenadjusting the starting point for the mitigating factors discussed above, it is submittedthat the appellant would be more appropriately sentenced to 21 and a half months'imprisonment, placing the appellant on a sentence of under two years. This meansthat the court must then consider whether there was a less restrictive and moreappropriate option available.[21] It is submitted in circumstances where it appears that imprisonment does littleto deter the appellant, other options should have been considered. When taking intoaccount his personal circumstances, and the lack of recent community-basedsentences, Ms Chalmers argues there were less restrictive sentencing options availableto the Court. Given the appellant has already served six months imprisonment, it issubmitted that the most appropriate and least restrictive available sentence, is asentence of intensive supervision.Respondent's submissions[22] Mr Alloway, for the Crown, submits that if the discounts are quantified usingthe methodoloty outlined in Moses v R, the District Court afforded substantialdiscounts to the appellant.[23] Mr Alloway explaines that the Judge adopted a starting point of 24 months'imprisonment for the offending. This was step one of the Moses assessment. Both theuplifts and the discounts need to be seen, in percentage terms, in relation to thissentence. The four month discount is around a 17 per cent discount from the startingpoint of 24 months' imprisonment, while the six month discount for guilty plea is a25 per cent discount, being the maximum discount available. Once the discountsafforded are seen in this light, they slightly exceed the percentage discounts which theappellant submits should have been allowed, and so should not be disturbed on appeal.[24] With regards to whether intensive supervision ought to have been imposed, theCrown submits that such a sentence would have been manifestly inadequate. Firstly,the current offending was committed while subject to release conditions. An intensivesupervision sentence requires weekly reporting and the appellant's lack of compliancein the past with reporting conditions is relevant to the appropriateness of such asentence. Mr Cruden has 22 convictions for breaching his release conditions. Thestarting point of imprisonment indicates that a sentence of intensive supervision wouldbe inadequate to capture the culpability of the offending and further, a sentence ofintensive supervision is unlikely to serve a rehabilitative purpose.Analysis[25] The first ground of appeal focuses on whether an adequate discount wasafforded for mitigating circumstances. While Ms Chalmers cites four personalmitigating factors, I consider that there is duplication in these and not all of them arecausative of the offending.[26] It is clear that Mr Cruden suffers from ADHD. While there is no formal reportconfirming this, he reports being diagnosed with ADHD as a child. As Mr Crudensaid to the pre-sentence report writer "I just don't think first, I do it then think about itlater". It is highly likely that the diagnosis of ADHD is a powerful driver of hisoffending. I also consider that his vulnerability to pressure from others, leading himto commit property offences on request or under the threat of others, is simply amanifestation of his ADHD. It is neither a standalone mitigating factor nor, in relationto the current spate of offending, is it identified as a driver of the offending.[27] In terms of whether drug addiction is causative of his offending, I acceptMr Cruden is a drug user and he advised the pre-sentence report writer that he usescannabis and methamphetamine, when available, to self-medicate, especially when heis feeling down or when he needs to "calm his racing brain down". However, he alsoadvised that neither substance was an issue at the time of the offending. For thisreason, I do not consider that drug addiction or substance abuse was causative of theoffending warranting a standalone discount as a mitigating factor.[28] Finally, Ms Chalmers refers to his alcohol and other drug assessment whichadvised that he was not interested in having residential treatment options canvassedbecause he was held hostage in prison and "struggles when forced to live withstrangers". Again, there is nothing to suggest that this incident is causative of hisoffending. Mr Cruden has an extensive criminal history commencing when he was ayouth. There is nothing to suggest the incident he refers to accelerated his offendingbehaviour or triggered the offending in question.[29] In all the circumstances, I consider the four month discount, or just under17 per cent, which the Judge afforded for personal mitigating factors generouslyrecognised personal mitigating factors for Mr Cruden and, in particular, his ADHDdiagnosis which contributes to his compulsive behaviour and poor decision making.[30] While I consider the uplifts imposed on Mr Cruden's sentence for offendingwhile subject to release conditions and for his previous (and extensive) convictionhistory for similar offending, were high, the discounts he was afforded were equallygenerous.[31] In these circumstances, I do not consider the sentence of 26 months wasmanifestly excessive. It represented a number of different offences, with some of themculminating in what must have been a frightening incident in a public shopping mallwhere the appellant was pursued through the mall by Police and then physicallygrabbed and pulled to the ground to stop him.[32] Given my conclusion that the sentence was not manifestly excessive, I do notneed to consider whether a sentence of intensive supervision would have been moreappropriate. However, I am confident it would not have been. While Ms Chalmerssaid the Judge acknowledged prison did not deter his behaviour, and he had not had acommunity-based sentence for some time, there was clear evidence before the Judgethat he would be unlikely to comply with a community-based sentence. He had veryrecently, repeatedly breached his post-sentence release conditions and the pre-sentencereport writer lacked confidence that Mr Cruden would engage with community-basedsentences.[33] Thus, even if I had allowed the sentence appeal, I would not have considereda sentence of intensive supervision appropriate. It would neither reflect the severityof the offending, nor would it have served any other useful purpose given Mr Cruden'sacknowledged inability to comply with such sentences.Result[34] The appeal is dismissed.Solicitors:Crown Solicitor, ChristchurchCopy to:K L Chalmers, Barrister, Christchurch