GORDON v NEW ZEALAND POLICE [2023] NZHC 2053

GORDON v NEW ZEALAND POLICE [2023] NZHC 2053 [4 August 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-106[2023] NZHC 2053UNDER the Criminal Procedure Act 2011IN THE MATTER of an appeal against sentenceBETWEEN JADE HENRY GORDONAppellantAND NEW ZEALAND POLICERespondentHearing: 27 July 2023Appearances: A J Greaves for AppellantC M Hallaway for RespondentJudgment: 4 August 2023JUDGMENT OF OSBORNE JIntroduction[1] Jade Gordon appeals sentences imposed on him in the District Court in June2023.1[2] Mr Gordon pleaded guilty to charges of:(a) assaulting police (x 2);2(b) resisting police;31 Police v Gordon [2023] NZDC 11709.2 Crimes Act 1961, s 192(2) – maximum penalty: three years' imprisonment.3 Summary Offences Act 1981, s 23(a) – maximum penalty: three months' imprisonment or fine notexceeding $2000.(c) driving while disqualified (third or subsequent);4(d) driver giving false information as to own identity;5 and(e) escaping police custody.6[3] Judge Couch sentenced Mr Gordon:(a) in relation to an incident on 22 January 2023 (the January charges):(i) assaulting police (2 x) — four months' imprisonment (2 x); and(ii) resisting police — one month's imprisonment.(b) in relation to an incident on 24 March 2023 (the March charges):(i) disqualified driving — one year and eight months'imprisonment;(ii) escaping custody — six months' imprisonment; and(iii) false identity information —disqualification only.[4] All sentences other than the false information sentence were ordered to beserved concurrently.[5] The Judge, in relation to periods of disqualification, ordered:(a) on the disqualified driving charge — disqualification for one year from7 August 2023;4 Land Transport Act 1998, s 32(1)(a) and 32(4) – maximum penalty: two years' imprisonment orfine not exceeding $6000 and mandatory 12-month disqualification.5 Sections 52A(1)(c), 52A(4), 52A(6) & 114(3)(b) – maximum penalty: $10,000 fine and mandatory12-month disqualification.6 Crimes Act, s 120(c) – maximum penalty: five years' imprisonment.(b) on the false information charge — two years' disqualification,cumulative on the previous disqualification (that is, commencing from7 August 2024).[6] Additionally, the Judge issued a notice under s 129B Sentencing Act 2002 tothe owner of the motorcycle referred to in the March charges.[7] Mr Gordon appeals the total length of the imprisonment sentence on thegrounds:(a) the total is manifestly excessive; and(b) there were errors in the calculation of the sentences imposed.[8] Mr Gordon also appeals the second disqualification period (imposed on thefalse information charge) on the basis it was incorrectly set at two years instead of oneyear.[9] The Crown concedes the end sentence of imprisonment was manifestlyexcessive and the appeal should be granted.[10] The Crown also recognises the second disqualification period was incorrectlyset at two years.FactsThe January charges[11] At around 2.15 am on 22 January 2023, Mr Gordon was at the Ibis Hotel inChristchurch when police were called due to a dispute between him and his partner. Itwas established his contact was in breach of bail conditions. Police advisedMr Gordon he was under arrest and placed a handcuff on his right wrist. He lungedforward and dragged the constables into the entrance way of the room, causing themto fall to the ground.[12] During an ensuing struggle, Mr Gordon was on the ground with his face downas one of the constables attempted to restrain him. Mr Gordon lashed out with hiselbow, striking one of the constables hard in the chest three times. At the same time,Mr Gordon kicked out with both legs, striking the other constable on the left shin.Mr Gordon continued to try to attack both officers. They were eventually able todeploy pepper spray and arrest Mr Gordon.[13] He appeared in court on the resulting charges on 23 January 2023 and wasbailed on a number of conditions.The March charges[14] On 22 August 2022, Mr Gordon had been disqualified from driving for oneyear. On 24 March 2023, he was driving a motorcycle on Ferry Road, Christchurchwhen he was stopped for not having any lights on the vehicle.[15] When asked to provide identification, Mr Gordon provided the name"Jonothan Gordon". He did not provide his birth date, stating he had forgotten it.Further checks established Mr Gordon's true identity and that he was in breach of hisbail conditions. He was told he was under arrest. He began to run away from theofficer along the footpath. He then turned and charged towards the officer. He wastasered and arrested.The District Court decision[16] The Judge took the driving while disqualified as the lead charge because ofMr Gordon's history (nine previous convictions for driving while disqualified orsuspended, four of which had been entered in the previous 18 months). The giving offalse information was treated as an aggravating factor. The Judge adopted a startingpoint of 16 months' imprisonment for the disqualified driving and false informationcharges. The Judge then applied an uplift of four months' imprisonment for theescaping custody charge.[17] The Judge then considered the 22 January offending. He noted it involved atotal failure on Mr Gordon's part to accept the authority of the police. Mr Gordon, inexplanation, said he believed the charges on which he was bailed had been withdrawn.The Judge observed the charges on which he had been bailed had not been withdrawnbut took into account that was what Mr Gordon was thinking. The Judge took astarting point of five months' imprisonment for the three January charges.[18] The resulting (combined) starting points for all charges was 25 months'imprisonment, which the Judge adjusted to 21 months for totality.[19] The Judge identified one personal aggravating factor, naming Mr Gordon'soffending while on bail in express breach of his bail terms. The Judge imposed anuplift of 15 per cent for that (but no uplift for previous offending).[20] The Judge then considered personal mitigating factors. He noted Mr Gordon'sprompt guilty pleas on the lead charges and allowed a discount of 22 per cent for this.Implicitly, as confirmed by counsel at this hearing, the Judge approached the discountby reference to a full 25 per cent discount on the lead charges and 20 per cent for thedeferred guilty pleas on the other charges.[21] The Judge then referred to an alcohol and drug assessment report provided bya clinician at ADAS. The clinician, upon the basis of interviewing Mr Gordon andaccessing his medical records, concluded Mr Gordon had an established dependenceon methamphetamine, cannabis and alcohol, all of which were in remission followinghis imprisonment. The clinician recommended that Mr Gordon engage in a longer-term programme (through Odyssey House, of which ADAS was a service) to addressnot only Mr Gordon's substance use but other underpinning factors, related to a lackof meaning and structure when Mr Gordon is within the community. The longest timeMr Gordon (32 years old at the time of the report) had been in the community in recentyears was 10 months.[22] In an "addiction history" addendum to the ADAS report, the clinician referredto disadvantages in Mr Gordon's early upbringing. Those included a mother who grewand dealt in cannabis and a father who was a member of Black Power. Mr Gordonengaged in little formal schooling, coming to reside in state care and becoming "self-taught" after being excluded from schools. His medical records refer to physical andsexual abuse in the home.[23] While Mr Greaves had submitted to the Judge that the longstandingmethamphetamine addiction in particular was highly relevant and causative of theoffending, the Judge found nothing in the material before the Court to establish acausal connection. The Judge also referred to the prohibition under s 9(3) SentencingAct (whereby the Court must not take into account by way of mitigation the fact theoffender was at the time of committing the offence affected by the voluntaryconsumption or use of alcohol, drugs or other substances).[24] With the 15 per cent uplift and the 22 per cent discount (seven per cent net) theJudge recorded that led to an endpoint of around 20 months' imprisonment.7[25] It was noted that Mr Gordon would benefit from residential rehabilitation forhis drug problem and, on that basis, the Judge granted leave to apply for substitutionof sentence.Principles on appeal[26] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011 and must be determined in accordance with s 250 of that Act. An appealagainst sentence may be allowed by this Court only if it is satisfied there has been anerror in the imposition of the sentence and a different sentence should be imposed.8As the Court of Appeal identified in Tutakangahau v R (quoting the lower court'sdecision), a "court will not intervene where the sentence is within the range that canproperly be justified by accepted sentencing principles".9 It is appropriate for thisCourt to intervene and substitute its own views only if the sentence being appealed is"manifestly excessive" and not justified by the relevant sentencing principles.107 The implicit mathematics was "21 months x 7 per cent equals 19.53 months"). Both counselinitially suggested at this hearing the correct calculation should have been 18.83. That suggestioninvolved an incorrect application of the methodology in Moses v R [2020] NZCA 296 whichrequires (as the Judge did) a two-step, not three-step, sequence.8 Criminal Procedure Act 2011, s 250(2) and 250(3).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].10 Ripia v R [2011] NZCA 101 at [15].SubmissionsAppellant[27] Mr Greaves, for Mr Gordon, submitted the sentences imposed were manifestlyexcessive, resulting from three errors:(a) incorrect uplift and discount adjustments were made;(b) no credit was given for addiction and personal mitigating factors; and(c) Mr Gordon's false information charge was treated as his thirdqualifying conviction instead of his second.[28] The Judge's starting point on the disqualified driving and the false informationcharges was 16 months. The Judge had regard to the nine previous convictions(including four recent) to find the gravity of the offending as being "near the mostserious" and therefore requiring the sentence to be near the maximum. Mr Greavessubmitted the Judge erred in treating the disqualified driving offending as "near themost serious". Mr Greaves referred to three cases:(a) Ross v Police11 — this Court upheld a starting point sentence of12 months' imprisonment where Mr Ross had eight previousconvictions (including five recent) for disqualified driving and hadprovided false particulars;(b) Beattie v Police12 — a case in which the District Court Judge hadadopted a starting point of 10 months' imprisonment on an 11th drivingwhilst disqualified charge, uplifted by five months to take account ofprevious convictions (including disqualified driving convictions). ThisCourt upheld the global starting point of 15 months' imprisonment asat the "upper level" of the range, citing Fataiki v Police.13 The startingpoint was set at 15 months' imprisonment;11 Ross v Police [2017] NZHC 2012.12 Beattie v Police [2022] NZHC 2673.13 Fataiki v Police [2021] NZHC 3446 at [28]; and Opetaia v Police [2015] NZHC 2532 at [36].(c) Lambert v Police14 — this Court upheld, albeit as "stern", a startingpoint of 18 months' imprisonment where Mr Lambert had 11 previousconvictions on driving while disqualified charges.15[29] Against this background, Mr Greaves submitted an appropriate starting pointwas 13 months' imprisonment rather than the 16 months adopted.[30] Turning to considerations of personal mitigating factors, Mr Greaves submittedthe Judge erred in concluding there was not a nexus between Mr Gordon's personalbackground and the offending.[31] Mr Greaves noted in particular:(a) there has been a history of addiction that has led to turbulence inMr Gordon's life, contributing to conduct that has repeatedly broughthim before the Court (including, a short time before the present charges,family violence charges which were subsequently withdrawn);(b) Mr Gordon had at the time of the present offences a misunderstandingin relation to the status of the withdrawal of those charges which led tohis response to the police; and(c) although he was mistaken as to the timing of the withdrawal of thecharges, he had proceeded on the basis of the withdrawal.[32] Mr Greaves noted the Supreme Court in Berkland v R clarified it is sufficient(for mitigation purposes) that background factors have a causative contribution inrelation to the offending, whether or not they can be described as operative orproximate causes.16[33] Mr Greaves submitted the Judge's decision did not contain any analysis of thechildhood disadvantages suffered by Mr Greaves, the contribution for instance that his14 Lambert v Police [2022] NZHC 49.15 At [18]–[21].16 Berkland v R [2022] NZSC 143 [2022] 1 NZLR 509 at [109].placement in state care will have had, and the continuing addiction problems identifiedin the reports.[34] Mr Greaves submitted a discount of 20 per cent would have been appropriateto account for these aspects.[35] Mr Greaves accepted the Judge's uplifts of four months and five months (aboveat [15] and [16]) were appropriate.[36] Mr Greaves accordingly submitted the existing total sentence of 20 months'imprisonment should be cancelled and replaced with a sentence of approximately12.5 months' imprisonment.17[37] Finally, turning to the periods of disqualification, Mr Greaves identified that,whereas the false information charge led to Mr Gordon's second conviction for suchan offence, the Judge treated it as a third or subsequent qualifying offence.[38] As Mr Gordon was charged with a second offence pursuant to s 52A(1)(c) LandTransport Act 1998, the penalty prescribed was one year's disqualification.18Crown[39] For the Crown, Ms Hallaway acknowledged the end sentence of 20 months'imprisonment imposed was manifestly excessive. In her submission, a sentence ofapproximately 16.5 months' imprisonment should be substituted.[40] In reaching that point, Ms Hallaway submitted:(a) the Judge's starting point (on the disqualified driving and falseinformation charges), whilst possibly stern, was not excessive; and(b) there was an error in relation to personal mitigation in that matters inMr Gordon's past, as referred to in the ADAS report, were causally17 The discount calculation being 22 months x 42 per cent = 9.24 months, deducted from 22 months= 12.5 months.18 Land Transport Act 1998, ss 52A(2) and (4).connected to Mr Gordon's offending and warranted a discount in thevicinity of 10 per cent.[41] Ms Hallaway also acknowledged that the decision in relation todisqualification periods involved a mistake as to the nature of the false informationconviction, and a one-year disqualification period should have been imposed on thatconviction.Decision[42] Notwithstanding the Crown's concessions, I consider the issues as to error andwhether the ultimate sentence was "manifestly excessive" for myself.[43] Given Mr Gordon's driving history, it was appropriate for the Judge to treat thedisqualified driving charge as the lead charge.[44] When the cases discussed by both counsel (above at [28]) are consideredalongside the facts relating to Mr Gordon's disqualified driving and false informationcharges, the starting point of 16 months cannot be considered outside the range. Themaximum penalty on the disqualified driving charge was two years' imprisonment ora $6,000 fine. The maximum penalty on the false information charge was a fine of$10,000. Fifteen months was upheld by Eaton J in Beattie upon the basis that it wasat the top of the range (for an eighth driving while disqualified conviction) but withoutother aggravating features.19 Here, Mr Gordon's offending was aggravated by hisproviding false information.[45] Similarly, in Lambert, Cook J upheld (albeit as "stern") the starting point of18 months when Mr Lambert had 11 previous convictions, the offending not beingaffected by the giving of false information or similar offending.[46] The appellant has not demonstrated that the Judge's starting point of16 months' imprisonment involved an error.19 Beattie v Police, above n 12, at [34]; citing Fataiki v Police, above n 13, and Opetaia v Police,above n 13.[47] That said, I am satisfied the Judge erred by rejecting any relevant connectionbetween matters in Mr Gordon's background and the offending. It was not suggestedfor Mr Gordon that consumption of methamphetamine (or other drugs) affected himin his conduct on the two days in question. The basis of the submission as to mitigatingcircumstances lay in matters raised in reports as to disadvantages stemming fromchildhood (including drug taking in the household and entry into state care) that haveled to a history of substance abuse affecting his ability to pro-socially engage in thecommunity.[48] Mr Gordon must nevertheless accept a substantial level of responsibility forhis own decision-making at the time of the two sets of offences.[49] In these circumstances, a discount in sentence to reflect matters of personalmitigation should have been given. I accept, in line with the Crown's submission, thatan appropriate level of discount would have been 10 per cent.[50] Applying these findings to the other components leading to the calculation ofMr Gordon's sentences, the resulting sentence length is indicated in the followingtable:TABLEStarting pointsDisqualified driving and false information 16 monthsEscaping custody Four monthsJanuary charges Five monthsSubtotal 25 monthsNet for totality 21 monthsAdjustments for personal factorsOffending while on bail 15 per centEarly guilty pleas 22 per centPersonal background 10 per centSubtotal 32 per centNet discount 17 per centCalculation (Moses) — 21 months less 17 per cent equals 17.43 — say 17 months.[51] Standing back, I find the sentence imposed (on the disqualified driving charge)of 20 months' imprisonment to be manifestly excessive. I do not consider the samecan be said of any of the sentences imposed on the lesser charges.[52] That leaves for consideration the disqualification period imposed in relation tothe false information charge. For the reasons identified by both counsel, thedisqualification of two years was incorrectly imposed.Outcome[53] I order:(a) the appeal is allowed;(b) the sentence of one year and eight months' imprisonment on thedisqualified driving charge is quashed;(c) on the disqualified driving charge, a sentence of one year and fivemonths' imprisonment is substituted;(d) the disqualification on the false details charge is quashed; and(e) on the false details charge, there is in substitution an order disqualifyingthe appellant from holding or obtaining a driver's licence for a periodof one year commencing on 7 August 2024.[54] For the avoidance of doubt, the date at which Mr Gordon will become eligibleto apply for a driver's licence again will be 7 August 2025 (not the date of August2026 referred to in the decision).Osborne JSolicitors:Crown Solicitor, ChristchurchCopy to:A J Greaves, Christchurch