BECKHAM v NEW ZEALAND POLICE [2018] NZHC 324

BECKHAM v NEW ZEALAND POLICE [2018] NZHC 324 [6 March 2018]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2018-425-000002[2018] NZHC 324BETWEEN DYLAN LEVI BECKHAMAppellantAND NEW ZEALAND POLICEDEPARTMENT OF CORRECTIONSRespondentsHearing: 5 March 2018Appearances: P B Redpath for AppellantR W Donnelley for RespondentsJudgment: 6 March 2018JUDGMENT OF GENDALL JIntroduction[1] On 5 December 2017 in the District Court at Invercargill, the appellant,Mr Beckham was sentenced by Judge Roberts to three years' imprisonment on anumber of charges. These were of possession of methamphetamine and cannabis forsupply, offering to sell cannabis, breach of release conditions, failing to answer bail,intentional damage, possession of a pistol, and possession of a knife in a public place.1He appeals that sentence, saying it departed from a sentencing indication previouslygiven on 3 July 2017 by Judge Brandts-Giesen. He contends also that it failed to takeinto account time served on electronically monitored bail (EM bail).1 Police v Beckham [2017] NZDC 27946.The offending[2] Mr Beckham was released from prison on 14 September 2016 on a specialcondition that he attend a departmental 'motivational' programme. The earliest chargecurrently at issue arose when he failed to comply with that condition. He appeared inthe Invercargill District Court on that charge in February 2017 and was bailed toreappear later that month. He failed to appear and was also charged with failing toanswer bail.[3] In March 2017 a house at which Mr Beckham was present, with his partnerand their daughter, was searched pursuant to a warrant. Found there was 2.29 gramsof methamphetamine (street value $2,290), packaged in small quantities in snap lockbags and 4.98 grams of cannabis similarly packaged. Cash, scales, and other drugrelated paraphernalia were also located at the property.[4] The next charge chronologically was one of intentional damage. In June 2017Mr Beckham was at his mother's address, became upset, and threw his dinner plate atthe wall causing damage to the gib board.[5] In relation to the above charges Mr Beckham had been remanded on EM bailat his mother's address. In September 2017, that address was searched pursuant to awarrant. A Ruger .22 calibre pistol with a silencer was located between Mr Beckham'sbed base and the mattress. The safety catch was off, and the pistol was loaded with a10-shot magazine. It also had a round in the chamber. It was set up in such a way thatthe handle grip was readily available, and just visible looking at the mattress. Anumber of methamphetamine point bags were also located in the bed, two of whichhad methamphetamine in them. A "drug dealer's kit", with point bags, straws,scoopers, and electronic scales was also located.[6] After the search, the appellant was located, and taken to the Police station. Onthe way there, he admitted he had a knife hidden in the inside pocket of his jacket. Onsearching the appellant this was found to be a 30cm butcher's knife. The appellanthad been located by Police after coming out of a meeting at the probation office. Assuch the summary of facts alleges Mr Beckham had taken the knife into the meeting.[7] Subsequently Mr Beckham's phone was searched. A number of Facebookmessages were found in which Mr Beckham had offered to sell cannabis to associates.In total he had offered to supply on five occasions, including offering an ounce for$450 and half an ounce for $250.The sentence indication[8] Judge Brandts-Giesen, as I have noted, gave a sentencing indication on 3 July2017 in relation to the charges up to and including the count of intentional damage.2In relation to the drug charges his Honour said "I do not pretend for a minute that youwere a drug 'supermarket' or even a 'corner store' but clearly you were at least a'roadside hawker'".[9] Taking the possession of methamphetamine for supply as the lead charge,Judge Brandts-Giesen indicated a 24-month starting point. A four-month uplift wouldbe applied for the possession of cannabis for supply charge, and for the remainder ofthe charges – failing to appear, wilful damage, and breaching release conditions – afurther two-month uplift.[10] From that overall starting point of 30 months a four-month discount would beapplied for Mr Beckham's "relative youth" (23 years), the Judge noting also his clearaddiction problems. What would be a "late-ish plea of guilty" would entitle him to afurther 20 per cent discount, which, rounded down, he said, would result in a sentenceof 21 months.[11] The Judge then said:I think the answer for you is probably to have home detention along withsupervision, so that you can be guided as well as punished. There is some hopethat a home address, such as your mother's, is suitable for home detention,bearing in mind that she has taken quite a strong line in trying to keep you inline. There will obviously need to be post detention conditions.2 Police v Beckham DC Invercargill, CRI-2015-001056, 3 July 2017.[12] A final indication of 11 months' home detention was given, which alsoaccounted for half a month added in substitution of an existing community worksentence that would be cancelled.The sentencing[13] When the matter came before Judge Roberts for sentencing, the second trancheof charges was also at issue. The Judge acknowledged the sentence indication, butsaid it had been "well and truly overtaken by subsequent events".[14] The Judge referred to two probation reports. The first, dated from September2017, assessed Mr Beckham as being at a high risk of reoffending. He "presented asoppositional and aggressive", something which the Judge noted was consistent withmethamphetamine use. He had frequently exhibited such behaviour and minimisedhis offending, displaying no remorse. The second noted the offences had beencommitted whilst on EM bail, but suggested home detention may still be an alternativesentence to imprisonment.[15] The Judge noted submissions from counsel that Mr Beckham had become "adifferent person entirely" after two months of abstinence from drugs, havingrediscovered ambitions that his addiction had robbed him of.[16] However, Judge Roberts was of the view that, in light of the second tranche ofoffending, and in particular the firearm charge, home detention was no longerappropriate. The offences were committed while on EM bail. He had "exhibitedunnaturally aggressive and combative attitudes at interview" and has been "unable toengage civilly with Corrections". A submission that the firearm was there becauseMr Beckham was contemplating taking his own life was rejected. The Judge said:If that were true there would be no need for anything other than a single bullet.I repeat, there was a magazine containing eight bullets it was ready to fire.Your counsel contends there are no sinister connotations. The reality is thereare sinister connotations. Once more you were dealing drugs. The fallacy inyour claim that you were contemplating suicide is exposed when one hasregard to the fact that very day you took a knife into the probation office. Thatwas not there to enable you to stab yourself. I reject the claim that the gun canbe accommodated by inclination towards suicide.[17] The firearm, the Judge said, moved the offending "to a higher level", and "wasrealistically in [Mr Beckham's] hands [who was] campaigning as an active criminal,dealing and using drugs".[18] On the second tranche of offending, the Judge took a starting point of18 months' imprisonment, which took into account the fact the offending occurredwhile on bail. In relation to the offensive weapon charge an uplift of six months wasapplied.[19] This two year period Judge Roberts added to the 30-month starting pointindicated by Judge Brandts-Giesen for the first tranche of offending. The Judge thenallowed a six-month discount for totality, and a full year (25 per cent) discount toreflect the "full concession" for guilty pleas. That left an overall sentence of threeyears.[20] Concluding, the Judge said:I am not prepared to allow concessions attaching to time spent on e-bail. Thatwas an alternative to a custodial remand. It was a waste of time and I have nodoubt that offending commenced immediately after your release.Jurisdiction and approach to appeal[21] Mr Beckham appeals as of right.3 This Court can only allow the appeal if it issatisfied that there is an error in the sentence imposed and that an alternative sentenceshould be imposed.4 If the sentence under appeal can be properly justified havingregard to relevant sentencing principles, this Court cannot substitute its own views forthose of the sentencing Judge. The sentence must be either manifestly excessive orinappropriate if the sentencing Judge's discretion is to be interfered with.[22] It is not enough that the Judge made an error in his reasoning: the focus is onthe sentence imposed rather than the process by which the sentence was reached.53 Criminal Procedure Act 2011, s 244.4 Criminal Procedure Act, s 250.5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].Grounds of Appeal[23] Before me, Mr Redpath for the appellant stated that this appeal was effectivelynot an appeal against the substance of the sentence finally imposed, but rather abouterrors he alleges Judge Roberts made in reaching his decision that meant his overallsentence was too high. With this in mind, what is apparent is that Mr Redpathadvances two discrete grounds on appeal. The starting points, uplifts, and discountsthe Judge applied are not challenged. However, he says the Judge erred by not alsoapplying the four-month discount for personal factors (age, addiction) thatJudge Brandts-Giesen included in his sentencing indication. He also submits that afurther discount in the vicinity of two months should have been applied to take intoaccount the time Mr Beckham spent on EM bail prior to sentence.Sentence indication discount for personal factorsSubmissions[24] Mr Redpath accepts that only the Judicial Officer who gave the sentencingindication is bound by it and as such Judge Roberts was not under an obligation tofollow the indication.6 However, he notes that s 115(2)(b) Criminal Procedure Actrequires the Court to grant leave to a defendant to withdraw a plea of guilty if theypropose to depart from the sentencing indication. He submits that s 115 anticipatesthe Judge will indicate they are to depart from the indication and give an opportunityfor the defendant to vacate their guilty plea. He refers to the Court of Appeal'sjudgment in Taylor v R in which the Court said:7A sentence indication generates an expectation. If it is relied upon, and thenfor whatever reason the expectation is not met, the accused must be given theopportunity to vacate the pleas. What is in issue is the integrity of the sentenceindication system.[25] Mr Beckham is not seeking to appeal his conviction on the ground that he wasnot given an opportunity to vacate his pleas, and Mr Redpath accepts a sentence ofhome detention became unrealistic in light of the later charges. However, he says that6 Criminal Procedure Act, s 116(3).7 Taylor v R [2013] NZCA 55 at [23].as the Judge did not say he was departing from the sentence indication, he should haveincluded the four month discount the Judge had planned to grant for personal factors.[26] Responsibly, Mr Redpath also points out that the Court should have cancelledthe community work sentence and imposed a further two to four weeks' prison on thesentence as per the indication.[27] Mr Donnelly for the Crown submits the Judge was correct to depart from thesentence indication given the changes in circumstances.Analysis[28] As Judge Roberts was not the Judicial Officer that gave the indication, he wasnot bound by it. However, I accept that the effect of s 115(2)(b) is that the Judge oughtto have given an opportunity for the appellant to vacate his guilty pleas on the firsttranche of charges. The Judge's failure to do so would be grounds under s 252Criminal Procedure Act for a successful appeal against conviction and forMr Beckham to be given an opportunity to re-enter pleas.[29] However, that is not what the appellant seeks, and it does not necessarily followthat the failure to allow an opportunity to vacate pleas means the sentencing Judge wasbound by the indication.[30] In Te Tau v Police, MacKenzie J allowed an appeal against sentence incircumstances like the present, where the sentencing Judge had departed from anotherJudge's sentence indication and had not given the opportunity for the plea to bevacated.8 There the indication was that a "full discount" for guilty plea would beawarded, but the sentencing Judge had only given 15 per cent. The sentence wasremedied to be in line with the indication.[31] However, this is not always the approach taken on sentence appeals in suchcases. In Wilson v R, Wylie J rejected the submission that the sentence should beamended to be in line with the indication as a matter of course, saying "If I am to allow8 Te Tau v Police [2015] NZHC 1716.the appeal, I must also be satisfied that a different sentence should have been imposed.I must consider afresh what sentence was appropriate."9[32] That approach was followed in Appuhamilage v Police. There, Moore J said:10However, I prefer the approach adopted by Wylie J namely that before alteringthe sentence the appellate Court must be persuaded that the sentence underappeal is wrong and a different sentence should be imposed. This approach isconsistent with s 250 of the CPA. It is also consistent with s 252 of the CPAas the appellate Court is not bound by the sentence indication. Ultimately theissue for the appellate Court is whether the sentence is correct, not whether itis consistent with the indication.[33] Similarly in Nuku v R, Mander J said:11[19] This Court has taken a varied approach to the situation where asentence imposed differs from the sentence indicated and the defendant doesnot wish to vacate his or her plea. In some cases, notwithstanding the sentenceimposed being within the available range, it was considered appropriate toadjust the sentence on appeal to conform with the indication. In other cases,while satisfied an error had occurred insofar as the sentence failed to conformwith that previously indicated, the Court held that to allow the appeal it wouldalso need to be satisfied a different sentence should have been imposed whenconsidering the matter afresh.[20] In my view, the latter course will ordinarily be the appropriateapproach.[21] The danger that arises when a sentence does not match that indicatedis that, because a defendant's expectations have not been met, the plea hasbeen entered on a false or mistaken premise. In order to meet that expectationit is necessary for an appellate Court to provide the appellant with theopportunity to vacate his or her plea in order to remedy the error and purgethe potential injustice arising from the faulty process.[22] Because Mr Nuku does not wish to avail himself of that course despitebeing offered the opportunity to do so, any potential miscarriage resultingfrom a causal connection between the error and the entry of the plea can bediscounted.[34] I respectfully agree with this approach confirmed by Mander J in Nuku.12 Imust be satisfied that a different sentence should have been imposed, and not merelythat the sentence differed from that indicated.9 Wilson v R [2015] NZHC 298 at [37].10 Appuhamilage v Police [2015] NZHC 2355 at [32].11 Nuku v R [2016] NZHC 2255.12 Above n 11.[35] However, in the present case the matter is simpler because the end sentence didnot in fact materially differ from the term of imprisonment in the sentencingindication. Putting home detention to one side, which Mr Redpath accepts was nolonger a realistic option, the indicated prison sentence was one of 21 months. Thatwas on the basis of only 20 per cent discount for guilty pleas. Judge Roberts, atsentencing, allowed the full 25 per cent on the 30 month starting point – giving asentence of 22 months, 2 weeks. In addition, the indication was that there should bea further uplift for the vacated community service sentence which Judge Roberts didnot include in his sentence and for which Mr Redpath accepts one month would havebeen appropriate. When that is added, the discrepancy in sentence from that indicatedis a mere two weeks.[36] Mr Beckham cannot eat his cake and have it too. If he wants to rely on thesentence indication that means also taking the further uplift and the lower discount forguilty pleas. Although the Judge got there by a slightly different route, he effectivelyended up with the same sentence as that indicated by Judge Brandts-Giesen wouldhave been appropriate in lieu of home detention.[37] In any event, I am satisfied that the sentence overall was appropriate in light ofthe sentence indication and the changed circumstances at sentencing.Discount for time on EM bailSubmissions[38] Mr Redpath says the Judge considered that the offending was while on EM bailas an aggravating feature in setting the starting point. His Honour's reason for notawarding a discount for time spent on bail was that "it was a waste of time and I haveno doubt that offending commenced immediately after your release". This, hesubmits, was to double-punish Mr Beckham for offending on bail.[39] Mr Redpath draws attention to s 9 Sentencing Act which relevantly provides:9 Aggravating and mitigating factors(2) In sentencing or otherwise dealing with an offender the courtmust take into account the following mitigating factors to theextent that they are applicable in the case:(h) that the offender spent time on bail with an EMcondition as defined in section 3 of the Bail Act 2000.(3A) In taking into account that the offender spent time on bail withan EM condition under subsection (2)(h), the court mustconsider—(a) the period of time that the offender spent on bail withan EM condition; and(b) the relative restrictiveness of the EM condition,particularly the frequency and duration of theoffender's authorised absences from the electronicmonitoring address; and(c) the offender's compliance with the bail conditionsduring the period of bail with an EM condition; and(d) any other relevant matter.[40] Mr Redpath accepts that being on restrictive bail is materially different to beingremanded in custody. However, he says given the fact that Mr Beckham was restrictedfrom working or attending matters in the community for four months this should countas a mitigating factor, and the failure to do so along with an uplift for offending onbail constitutes double-punishment.[41] Mr Donnelly says the Judge did not err given the extent and seriousness of theoffending committed on EM bail, and his attitude towards Corrections staff during thatprocess. Regardless, he says the overall sentence was not manifestly excessive – infact, the starting points were lenient and the discounts generous.Analysis[42] There can be no dispute that Judge Roberts was entitled to take into accountoffending while on bail as an aggravating factor. It increases the seriousness of theoffence by virtue of the disregard shown for Court imposed sanctions. There can alsobe no dispute that, ordinarily, a Judge is entitled to discount time spent on EM bail asa mitigating factor if there has been failure to comply with EM bail conditions. Thequestion here is whether to regard it as an aggravating factor to both charges faced bythe appellant and to exclude it as a mitigating factor constitutes double punishment.[43] In Gage v R the sentencing Judge applied a one month uplift for the fact theoffending occurred while on bail.13 No discount was given to reflect the 5 months theappellant had spent on restrictive EM bail. On appeal to the Court of Appeal it wasargued that there should have been a discount for time spent on EM bail. The Courtdismissed the appeal, remarking:[26] We are not persuaded that a further discount was warranted by the factthat the appellant was on EM bail between April and September 2013. In thelight of the appellant's breaches of bail, his further offending while on ordinarybail and while on EM bail, no discount for the approximately five months hewas on EM bail was warranted.[44] In Murray-MacGregor v R the sentencing Judge mentioned offending while onbail as a factor in fixing the starting point, although it was unclear to what extent.14No discount was given for the seven months he was on bail with a 24-hour curfew.The Court of Appeal rejected the submission a further discount should have beengiven, concluding:15 the period of bail was not particularly lengthy (around seven months);secondly, for almost three months he was at home with his partner andchildren; thirdly, given the nature and duration of the offending and the factthat there was significant offending while on bail, we have reached theconclusion that the sentence of three years imprisonment imposed on MrMurray-MacGregor was in fact lenient.[45] Here, it is not clear to what extent the offending while on bail was factored intothe starting point. I accept that sometimes there may be a risk of double-countingwhere there is both an uplift and no discount for time spent on EM bail. However, Iagree with Mr Donnelley that the overall sentence was well within range, and thestarting point adopted would have been available even had the offending not been13 Gage v R [2014] NZCA 140.14 Murray-MacGregor v R [2011] NZCA 66.15 At [22].while on bail. Given this, and in light of the above authorities, it cannot be said thatthe Judge was bound to give a discount nor that not doing so made the sentencemanifestly excessive.Conclusion[46] Mr Beckham has not demonstrated there was any error in the sentenceimposed. The appeal is dismissed.[47] For the avoidance of doubt, I confirm the sentence of community work theappellant was subject to prior to the current sentence is quashed. It is adequatelyaccounted for in the present sentence....................................................Gendall JSolicitors:Eagles Eagles & Redpath, InvercargillPreston Russell Law, Invercargill