FORTUNE v POLICE [2019] NZHC [ 3500]

FORTUNE v POLICE [2019] NZHC [ 3500] [23 December 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2019-419-84[2019] NZHC 3500BETWEEN CHAD JADE FORTUNEAppellantAND NEW ZEALAND POLICERespondentHearing: 18 December 2019Appearances: G D Prentice for AppellantA S C Alcock for RespondentJudgment: 23 December 2019JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 23 December 2019 at 11:00 amRegistrar/Deputy RegistrarSolicitors:Crown Solicitor, HamiltonIntroduction[1] Mr Fortune appeals against a sentence of two years and seven months'imprisonment imposed by Judge Phillips, in the District Court at Hamilton, on 17October 2019, on charges that he pleaded guilty to on the morning his trial was due tocommence.1 Those charges are:(a) Intentional damage.2(b) Driving whilst disqualified third or subsequent.3(c) Dangerous driving.4(d) Failing to stop when followed by red and blue flashing lights third orsubsequent.5(e) Possession of methamphetamine utensils.6(f) Failing to remain stopped.7[2] Mr Prentice for the appellant, submits that the sentence imposed by JudgePhillips was manifestly excessive for two reasons. First, he says that the nine monthuplift the Judge applied for the appellant's prior convictions was excessive. Second,he says the Judge erred by miscalculating the discount to be applied for the appellant'sguilty plea.[3] The Police oppose the appeal.1 Police v Fortune [2019] NZDC 20920.2 Crimes Act 1961, s 269(2)(a) (maximum sentence seven years' imprisonment).3 Land Transport Act 1998, s 32(1)(a) & (4)(a) (maximum sentence two years' imprisonment).4 Land Transport Act 1998, 35(1)(b) (maximum sentence three months' imprisonment).5 Land Transport Act 1998, 52A(1)(a)(ii) & (5) (maximum sentence three months' imprisonment).6 Misuse of Drugs Act 1975, s 13(1)(a) & (3) (maximum sentence one years' imprisonment).7 Land Transport Act 1998, s 52A(1)(b) (maximum sentence $10,000 fine).Background[4] On 15 June 2018, the appellant was disqualified from driving for a period ofone year. He had been convicted for driving while disqualified on seven previousoccasions.[5] On 6 February 2019, at 3.13 am, the appellant was driving a Ford motor vehiclesouth on Ulster Street, Hamilton. He had another person in the car with him. Policewere conducting a routine traffic stop, and the appellant stopped his vehicle. Policethen approached the vehicle and requested the appellant to produce his driver'slicence. He said his name was "Jason" and proceeded to make a U turn and droveaway without providing any further details.[6] The Police in the patrol cars initiated pursuit, activating their red and blueflashing lights and sirens. During the early part of his flight from the police he drovethrough multiple red traffic lights in the Hamilton City before exiting the city andentering a rural area. Although vehicle traffic in the city centre at that early hour ofthe morning was minimal, there were a number of pedestrians around the southern endof Victoria Street following bars closing on what was a public holiday.[7] Once out into the rural area the driving conditions changed and although theroad surface was dry there were intermittent patches of fog, although road traffic wasminimal.[8] While fleeing Police, the appellant drove at speeds exceeding 120 kilometresper hour through a 50 kilometre per hour zone. He also swerved into the right handside of the road numerous times, and at one point while travelling on State Highway27 he drove along the right hand side of the road for approximately 20 seconds.[9] Road spikes were ultimately deployed by the Police in an attempt to stop theappellant, however, he spotted the spikes and although he slowed down in an attemptto avoid them, he was unable to slow sufficiently to avoid them. He then acceleratedtowards a constable in an attempt to avoid the spikes, and collided with the constable'svehicle. He then reversed away and rammed into another police vehicle being drivenby a second constable.[10] The appellant continued to flee even after his vehicle's tyres had been spiked.Three tyres were deflated instantly. Nevertheless, the appellant continued to drive hisvehicle at speeds of up to 80 kilometres per hour on the three steel rims causingdamage to the road. After encountering the road spikes, the appellant managed todrive for approximately 11 kilometres before finally coming to a stop.[11] All together the pursuit continued for an hour and 15 minutes and extendedover approximately 112 kilometres.[12] In explanation to Police, the appellant said that he failed to stop as he hadrecently been released from prison for driving matters, and admitted to knowing thatthere was a warrant was out for his arrest.District Court decision[13] The Judge began by noting that the appellant had pleaded guilty the same dayhe was being sentenced, and on the morning of the first day of his trial after he hadreviewed a police video which recorded some parts of the police pursuit and hisapprehension. After viewing the video prior to the commencement of his trial, theappellant instructed his counsel to enter into discussions with police regarding thecharges he was facing. It appears that following discussions between his counsel andthe prosecutor, two charges were withdrawn. They were charges of resisting police,and assault with a weapon which related to his ramming his vehicle into theconstable's vehicle.[14] The Judge selected the charge of causing intentional damage to a police car asthe lead offence for the purposes of setting a starting point, that offence carrying withit a maximum sentence of seven years' imprisonment. The Judge rejected asubmission by the appellant's counsel that the driving while disqualified charge,having a maximum sentence of two years' imprisonment, should be adopted as thelead charge. The Judge explained his approach saying that the charge of intentionaldamage to the police vehicles was:88 At [9]by far the most serious in relation to penalty and is a culmination of all theaggravating factors and I will be taking that as the head [sic] charge with theother charges adding to the starting point.[15] The Judge referred to the offending as described in the summary of facts. Hesaid that in all his years as a Judge, the appellant's driving represented "the worstdriving fact summary I have ever heard."9 The Judge described the appellant's drivingas "horrendous", and having placed lives at risk in both the central city and the ruralarea he had driven through, that the appellant was heedless of the consequences of hisdriving and the safety of others, and that he had acted in an aggravated manner towardspolice, whose job it was to apprehend him.10[16] Having entered his pleas of guilty, the appellant did not want his sentencingdelayed while awaiting the preparation of a pre-sentence report, and the Judgeproceeded to sentence him by reference to previous pre-sentence reports prepared inrelation to the appellant. The first pre-sentence report was dated 1 June 2018 and wasprepared when he was facing similar charges to the present on which one year'simprisonment was imposed. The Judge commented that he considered the drivingconduct in that earlier case to have been nowhere near as serious as the appellant'sdriving in the present case. That report said that the appellant had an appalling drivinghistory, a sense of entitlement and had no real motivation to change. The report alsosaid that the appellant was a high risk offender, and posed a high risk to other roadusers.[17] The second pre-sentence report was dated 17 September 2018 and wasprepared in relation to charges of dangerous driving and assault with a weapon. TheJudge noted that report described the appellant as having a willingness to use anymeans to evade police.[18] Judge Phillips adopted a starting point of two years and six months'imprisonment for the offending in totality. He noted the appellant's "alarming"criminal history, including seven convictions for reckless and dangerous driving,seven convictions for failing to stop, and at least three prior convictions for driving9 At [4].10 At [4].whilst disqualified. The Judge also noted that the appellant had multiple convictionsfor injuring with intent, assault with a weapon and resisting police, and eightconvictions for breach of release conditions and community-based sentences.11 TheJudge considered that the sentences imposed on the appellant in relation to thoseconvictions did not bring about the desired result, and he imposed an uplift of ninemonths, resulting in an adjusted starting point of three years and three months'imprisonment.[19] The Judge noted that in the course of his discussions that morning, he hadinformed the appellant that were he to enter guilty pleas, he would allow him the fullcredit for pleading guilty. In delivering his decision the Judge said "I give you fullcredit" and applied a discount of eight months, bringing the end sentence to two yearsand seven months' imprisonment.12Approach on appeal against sentence[20] Under the Criminal Procedure Act 2011, the Court must allow the appeal ifsatisfied that, for any reason, there is an error in the sentence imposed on conviction,and that a different sentence should be imposed.13[21] In deciding whether to impose a different sentence, the Court does not simplysubstitute its own view for that of the original sentencing Judge.14 Rather, it must beshown that the sentence is manifestly excessive or wrong in principle.15 The focus ison the end result rather than the process by which the sentence was reached.16Submissions[22] Mr Prentice for the appellant does not challenge the starting point of two yearsand six months' imprisonment. In relation to the Judge's adoption of the intentionaldamage charge as the lead offence for sentencing, Mr Prentice says that the damagecaused by the collision between the appellant's vehicle and the Police vehicles was11 At [13].12 At [13].13 Criminal Procedure Act 2011, s 250(2).14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].15 Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R, at [30]–[35].16 Tutakangahau v R, at [36].relatively minor. He produced a set of Police photographs which were prepared as anexhibit for the appellant's trial which confirm that the damage was indeed minor andshow a small dent and scratch on the front bumper of one of the Police vehicles.[23] However, Mr Prentice principally takes issue with the uplift of nine monthsimposed by the Judge to take account of the appellant's prior convictions. Counselalso notes that the Judge appears to have taken into account the appellant's convictionsfor violence and non-compliance when calculating the uplift and, if so, that is in error.[24] Mr Prentice submits that when considering the uplift for prior offending, theJudge should only have considered the appellant's previous convictions for dangerousand reckless driving, and for failing to stop. He says that the appellant's priorconvictions for driving while disqualified should have been considered when settingthe starting point, and he relies on Drinkwater v Police, for that proposition.17[25] Mr Prentice submits that the appellant has 12 relevant prior convictions fordangerous or reckless driving, and failing to stop for police. He points out that forthose convictions, the appellant served total sentences of nine months' imprisonment,and submits that by uplifting the starting point by nine months on account of theappellant's prior offending, the Judge was effectively punishing him over again, withthe consequence that he was being punished twice for his previous offending. Counselsubmits that having regard to the need for proportionality between prior sentences andany uplift applied, the appropriate uplift in the present case would be no more thantwo months' imprisonment.[26] Counsel further submits that the Judge clearly indicated he would grant theappellant a full 25 per cent discount for entering guilty pleas and the appellant shouldbe entitled to this, notwithstanding his guilty plea was entered on the morning of histrial. Counsel points out that the Judge has granted that discount, but miscalculatedits application as 25 per cent of the 39 month starting point is 9.75 months rounded to10 months, and the Judge allowed only eight months.17 Drinkwater v Police [2013] NZHC 1036.[27] For the Police, Ms Alcock accepts that the Judge would have been in error ifhe took into account the appellant's convictions for violence and non-compliance.Nevertheless, counsel submits that a nine-month uplift, while stern, was available tothe sentencing Judge. Ms Alcock also points out that the appellant's offendingoccurred while he was subject to release conditions for similar offending.[28] As regards the guilty plea discount, Ms Alcock submits that the Judge wasgenerous in indicating he would allow the full 25 per cent discount, considering theappellant's guilty plea was entered on the first day of the scheduled trial. Ms Alcockalso notes that an amendment to the charges was made, with police withdrawing acharge of assault with a weapon and resisting police. However, counsel says thatnotwithstanding the withdrawal of those charges the factual summary on which theprosecution case against the appellant was based remained the same. Acknowledgingthat the Judge miscalculated the discount, Ms Alcock submits that it was neverthelessopen to the Court to provide for a lesser credit than 25 per cent for the appellant'sguilty plea.Analysis[29] One submission put to me by counsel for the appellant was that it was artificialof the Judge to adopt the offence of intentional damage as the lead charge, and insteadthe offence of driving while disqualified should have been adopted, with upliftsprovided to take account of the damage caused to the Police vehicles. Nevertheless,counsel does not challenge the starting point of two and half years.[30] The maximum sentence for driving while disqualified third and subsequent istwo years' imprisonment. The Judge could not have treated that as the lead charge andstill adopted a starting point of two and half years. In the circumstances, and havingregard to the admitted facts relating to the manner of the appellant's drivingculminating in him being stopped and his final attempt to drive away during which heintentionally drove into the Police vehicles, I consider that it was appropriate for theJudge to treat the intentional damage offence as the lead charge for the purposes ofsentencing, as the maximum sentence that can be imposed for that offence is sevenyears' imprisonment.[31] However, I accept that when calculating the starting point, the Judge shouldhave, and likely did have, regard to the number of prior convictions the appellant hasfor driving while disqualified, and in order to avoid double counting, those convictionsshould not have been considered when applying uplifts for his prior offending.[32] Accordingly, adopting the intentional damage offence as the lead charge, andrecognising the appellant's eight prior convictions for driving while disqualified, andtaking into account the appellant's appalling driving on the night in question, Iconsider that the appropriate starting point was two years and six months'imprisonment.[33] Turning to consider uplifts for the appellant's prior offending, I accept theJudge was in error when he referred to the appellant's prior convictions for violenceand non-compliance, and the convictions for driving while disqualified, and took thosematters into account in calculating the uplift. The Crown also accepted that approachwas an error. In those circumstances, I consider that an appropriate uplift for theappellant's previous offending would have been three months' imprisonment. Thatalso recognises that the appellant's offending occurred while he was subject to releaseconditions for similar offending. That would lead to an adjusted starting point of twoyears and nine months' imprisonment.[34] I turn to the guilty plea discount provided by the Judge. I note that the Judgeexplicitly recorded in his sentencing decision that on the morning of the first day oftrial he told the appellant that were he to plead guilty he would grant him the fulldiscount for plea. The Judge then said he was granting the full guilty plea discount,but in fact only allowed eight months, which is approximately 20 per cent. I think itis an error for the Judge to have clearly indicated to the appellant that he would allowthe full guilty plea discount, and thereby encouraged a guilty plea, to then not allowthat level of discount.[35] In those circumstances, I would grant the full discount of 25 per cent from theadjusted starting point of two years and nine months' imprisonment to result in a finalsentence of two years and one month's imprisonment.[36] I therefore consider that the Judge was in error, and imposed a sentence thatwas manifestly excessive.Result[37] The appeal is allowed.[38] The sentence of two years and seven months' imprisonment is quashed and asentence of two years and one month's imprisonment is imposed._____________Paul Davison J