BROWN v POLICE [2021] NZHC 2801

BROWN v POLICE [2021] NZHC 2801 [19 October 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-440[2021] NZHC 2801BETWEEN DARION XAVIER BROWNAppellantAND NEW ZEALAND POLICERespondentHearing: 19 October 2021 (via AVL)Counsel: G B Morison for AppellantP R McNabb for RespondentJudgment: 19 October 2021JUDGMENT OF BREWER JSolicitors/Counsel:Gregor Morrison (Auckland) for AppellantMeredith Connell (Auckland) for RespondentIntroduction[1] On 7 September 2021, Mr Brown was sentenced by Judge A-M Skellern onone charge of being unlawfully in a building1 and one charge of possession of a pipefor smoking methamphetamine.2 The sentence was six months' imprisonment.3Mr Brown appeals the sentence on the basis that it is manifestly excessive.[2] My task is to decide whether there is an error in the sentence such that adifferent sentence should be imposed. If the sentence is manifestly excessive then itmust be corrected.Judge Skellern's sentence[3] Mr Brown presented to Judge Skellern as a 27 year old with 59 previousconvictions. He had served multiple sentences of imprisonment. He was being heldin custody because he had breached his EM bail.[4] The Judge was also aware that Mr Brown was addicted to methamphetamineand this was the driver of Mr Brown's offending.[5] The factual background to the offending was straightforward. On 20 March2021, at about 5 am, Mr Brown climbed on to a private balcony attached to anapartment in a complex of apartments. Mr Brown used a potted plant to break a largewindow, thus gaining entry to the apartment. Mr Brown was cut by the broken glassand left a considerable amount of his blood inside the apartment. He left through thefront door.[6] Subsequently, Mr Brown was identified as the person who had left the bloodin the apartment. On 27 May 2021, the police arrested Mr Brown and found on hisperson a glass pipe of the sort used to consume methamphetamine.1 Summary Offences Act 1981, s 29(1)(a): maximum penalty of three months' imprisonment or a$2,000 fine.2 Misuse of Drugs Act 1975, s 13(1)(a) and (3): maximum penalty of one year imprisonment or afine of $500 or both.3 Police v Brown [2021] NZDC 19070.[7] Judge Skellern took the charge of possessing the methamphetamine pipe as thelead charge. She adopted a start point of four months' imprisonment. The Judge thenadded two months for the charge of being unlawfully in a building and a further twomonths to account for Mr Brown's criminal record. The Judge discounted the startpoint of eight months' imprisonment by 25 per cent because Mr Brown had pleadedguilty to the charges. That resulted in the end sentence of six months' imprisonment.The appeal[8] Mr Morison has identified a number of areas where he submits the Judge erred.But, first, he wants me to have regard to a report pursuant to s 27 of the SentencingAct 2002 prepared by Ms Jane Taylor. This report was not before Judge Skellern. Ithad been prepared for a sentencing on other charges which took place in March 2021.Mr Morison, who did not represent Mr Brown at that time, was unaware of itsexistence. Ms McNabb, responsibly, does not oppose me receiving the report. It is inthe interests of justice for me to do so, and so I will.[9] In essence, Mr Morison submits:(a) The start point of four months' imprisonment for possession of themethamphetamine pipe was not explained by the Judge and is too high.(b) Adding two months for the charge of being unlawfully in a buildingwas excessive. The maximum penalty is only three months'imprisonment.(c) The uplift of two months as a response to Mr Brown's criminal recordwas disproportionate and excessive.(d) The Judge should have given a discount for the acknowledged fact thatthe offending was driven by methamphetamine addiction.(e) A discrete discount is available because of the material described in thes 27 report.(f) The Judge should have given a discount for the 25 days spent on EMbail on restrictive conditions.[10] Ms McNabb for the respondent supports the sentence. Ms McNabb points outthat it is the end sentence which must be focused on and, she submits, an end sentenceof six months' imprisonment was stern, but within the range available to the Judge.Discussion[11] In my view, the more serious offending was Mr Brown unlawfully enteringinto the building. This was a private home and, since entry occurred around 5 am,there was a real risk of confrontation. In order to unlawfully gain entry, Mr Brownbroke through a large window and further damage was occasioned by him bleedingprofusely in the apartment.[12] A sentence of two months' imprisonment on this charge, on first principles, iswithin range.[13] On the other hand, the sentence of four months' imprisonment for possessionof the methamphetamine pipe is excessive. Section 13(3) of the Misuse of Drugs Act1975 does not mandate a sentence of imprisonment for possessing a methamphetaminepipe. A fine not exceeding $500 is a specified alternative to imprisonment. There areno aggravating factors in relation to this charge. Mr Brown was an addict whopossessed a pipe. In my view, on first principles, a sentence of no more than onemonth imprisonment was justified given that Mr Brown could not pay a fine andbecause his previous convictions would necessitate an uplift.[14] There had to be an uplift for Mr Brown's significant and relevant criminalhistory. I have assessed a starting point of three months' imprisonment on the chargesthemselves and, to be proportionate, an uplift of no more than one month is justified.On my analysis, that brings the overall starting point to four months' imprisonment.[15] The s 27 report speaks eloquently of Mr Brown's upbringing. It was almostentirely dysfunctional. From his earliest years, Mr Brown was neglected, abused andimmersed in the culture of drugs. I assess a causal nexus; an inevitability ofMr Brown's upbringing leading him to drug-related offending. A discount of five percent is available.[16] I agree with Mr Morison that there should be a further discount for Mr Brown'saddiction being the driver of his offending. In some cases, very significant discountscan be given. In this case, given Mr Brown's history of offending, being treated forhis addiction and relapsing, I consider a discount of 10 per cent is appropriate.[17] Ordinarily, a Judge would allow a discount for time spent subject to restrictiveEM bail conditions. But it is not an automatic discount. Here, Mr Brown breachedhis EM bail. On balance, I will not allow a discount.[18] The discount of 25 per cent for the pleas of guilty is appropriate.[19] I find, therefore, that the starting point of four months' imprisonment assessedby me should be reduced by 40 per cent. I will take that as an end sentence of twomonths and two weeks' imprisonment.[20] It follows that the end sentence of six months' imprisonment imposed in theDistrict Court is manifestly excessive and must be corrected.Decision[21] The appeal is allowed. The sentences are quashed.[22] On the charge of being unlawfully in a building, I substitute a sentence of twomonths and two weeks' imprisonment. On the charge of possession of a pipe, Isubstitute a sentence of one month imprisonment.[23] The sentences are to be served concurrently.________________________________Brewer J