BROWN v NEW ZEALAND POLICE [2018] NZHC 1643

BROWN v NEW ZEALAND POLICE [2018] NZHC 1643 [5 July 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2018-419-25[2018] NZHC 1643IN THE MATTER OF An appeal against sentence pursuant tosection 244 of the Criminal Procedure Act2011BETWEEN JAMES GEORGE REGINALD BROWNAppellantAND NEW ZEALAND POLICERespondentHearing: 5 July 2018Appearances: J Tarrant for AppellantM L Dillon for RespondentJudgment: 5 July 2018ORAL JUDGMENT OF POWELL J[Appeal against Sentence]Counsel:R G Douch, Crown Solicitor, HamiltonJ Tarrant, Barrister, HamiltonIntroduction[1] James Brown has been sentenced to a total of seven and a half months'imprisonment for driving offences.1 He has also been disqualified from holding orobtaining a driver's licence for 24 months.[2] He appeals on the basis that the sentence imposed was manifestly excessive.Because in this case the Crown concedes that there were errors in the sentence that hasbeen imposed, the primary question on appeal is whether a different sentence shouldbe imposed if the end sentence was manifestly excessive.Background[3] The summary of facts to which Mr Brown pleaded guilty discloses that onTuesday 20 March 2018 at approximately 11.35 am Mr Brown was driving his motorvehicle through Te Awamutu at an excessive speed; in particular a Police patrolobtained a radar speed check that confirmed that he was travelling at 123 km/h in a 50km/h residential speed limit along Cambridge Road in Te Awamutu. Police activatedblue red lights and sirens, and indicated for Mr Brown to stop.[4] Rather than stopping Mr Brown increased his speed in order to flee. Theresulting pursuit lasted for approximately 23 minutes. For the duration of the pursuitMr Brown drove throughout the highly populated central business district ofTe Awamutu reaching speeds of up to 85 km/h. He failed to stop at stop signs andfailed to give way at multiple intersections. He drove up the wrong side of a road, anddrove around a roundabout the wrong way. Because the pursuit continued for so longlocal schools engaged lock-down procedures to protect children's safety. A largenumber of onlookers witnessed the pursuit and fortunately assisted Police in clearingthe roads of traffic and pedestrians.[5] As the pursuit unfolded Mr Brown collided with an unmarked Police vehicleand continued to flee despite the rear bumper hanging off his car and being dragged1 Police v Brown [2018] NZDC 9322.behind on the road surface. In addition he drove recklessly through the carparks ofthe Warehouse, McDonalds and the Event Centre in Te Awamutu where it wasaltogether likely that children and families could have been present.[6] The Police ultimately deployed tyre deflating devices and while Mr Brown'sleft front and rear tyres of his car did deflate he nonetheless continued to attempt toevade Police. Eventually the pursuit came to a conclusion only when Mr Brown'svehicle collided with a parked motor vehicle in Teasdale Street, Te Awamutu andstopped.[7] At that point Mr Brown left the vehicle on foot and was apprehended a shorttime later. A search of Mr Brown's vehicle subsequently discovered a hunting knifein the centre console.[8] By any standards Mr Brown's behaviour and standard of driving was appalling.He subsequently pleaded guilty to four charges under the Land Transport Act 1998and a further Crimes Act 1961 offence. Those offences were:(a) failing to stop for blue and red flashing lights (third or subsequent);2(b) operating a motor vehicle on a road recklessly;3(c) failing to stop while operating a vehicle in a dangerous manner;4(d) driving a motor vehicle at a dangerous speed;5 and(e) possession of an offensive weapon.62 Section 52A(1)(a)(ii). The maximum penalty is a fine of $10,000, or a term of imprisonment ofthree months, as well as disqualification for two years.3 Land Transport Act 1998, s 35(1)(a). The maximum penalty is three months' imprisonment or afine of $4,500, as well as disqualification from holding or obtaining a driver licence for six monthsor more.4 Section 52A(1)(a)(i). The maximum penalty is a fine of $10,000, as well as disqualification for aperiod of six months.5 Section 35(1)(b). The maximum penalty is three months' imprisonment or a fine of $4,500, aswell as disqualification from holding or obtaining a driver licence for six months or more.6 Crimes Act 1961, s 202A(4)(a). The maximum penalty is three years' imprisonment.[9] This was not the first time that Mr Brown had come before the Court on thistype of offence and he has a history of similar offending. In 2010, he was convictedof driving dangerously causing death or injury. In 2011, he was convicted of recklessdriving. He was convicted of dangerous driving, reckless driving, driving and failingto stop for lights and sirens in 2014, and in 2015 he was convicted of dangerousdriving, failing to stop and driving while disqualified, as well as breach of releaseconditions. As the sentencing Judge, Judge Wilson QC noted, Mr Brown's previoushistory was "one of the most concerning of recidivist bad driving that [he] had everseen."District Court decision[10] Given the Crown's concession that there has been an error in the sentence it isnot necessary to spend much time considering Judge Wilson's sentencing decision.[11] His Honour accepted the Crown's submission that the charge relating to theknife was the least important, and consequently convicted and discharged Mr Brownon that charge.[12] In terms of the remaining driving charges, his Honour noted the maximumpenalty for the reckless and dangerous driving charges under s 35 of the LandTransport Act was three months. His Honour noted Mr Brown's high risk of harm andof reoffending and, because of Mr Brown's offending history, imposed cumulativesentences of three months' imprisonment, that is the maximum available on eachcharge.[13] He then uplifted the sentence by a further three months due to Mr Brown'sprevious history, arriving at a starting point of nine months' imprisonment. A 25 percent guilty plea discount was then applied, taking the end sentence to six and a halfmonths' imprisonment.[14] His Honour also disqualified Mr Brown from holding a licence for a period of24 months, which comprised of an 18 month disqualification for the s 35 offences, anda six month disqualification for the failure to stop.Subsequent events[15] There the sentencing notes end. However following the sentencing Ms Tarrant,for Mr Brown, advises she realised in sentencing Mr Brown to a term of six and a halfmonths' imprisonment, the Judge exceeded the maximum penalty for the two s 35offences referred to in the sentencing notes.[16] She consequently sought for the matter to be recalled. His Honour declinedthe applicant and Ms Tarrant was subsequently advised by the Registrar that the Judgehad amended the sentence to one of seven and a half months' imprisonment to reflectthe separate failing to stop for the flashing blue and red lights.Appellate principles[17] This is a first appeal against sentence. Section 250(2) of the CriminalProcedure Act 2011 ("CPA") provides the appeal must be allowed if the court issatisfied that for any reason there is an error in the sentence imposed, a differentsentence should be imposed.7[18] The touchstone is whether the sentence imposed is manifestly excessive,8 withthe focus on the sentence imposed, rather than the process by which it was reached.9Where the sentence is within a range that can properly be justified by acceptingsentencing principles, the appellate court will not disturb the sentence imposed.10The Position of the Parties[19] On behalf of Mr Brown, Ms Tarrant has identified two issues:(a) First, she described something of a "comedy of errors" that it appearsthat she and Judge Wilson seemed to be talking past one another givenMs Tarrant was unaware of the fifth charge and believed that Mr Brown7 Criminal Procedure Act 2011, s 250(2).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].9 At [36].10 Larkin v Ministry of Social Development [1015] NZHC 680.was only being sentenced on four charges, with only two of them beingtraffic charges to which a sentence of imprisonment applied;(b) From that starting point Ms Tarrant considers that it was unfair that theend sentence was increased by one month without the opportunity tomake submissions on the sentence and without the sentencing Judgeproviding reasons.[20] Taking these matters into consideration it was Ms Tarrant's submission that anend sentence of six and a half months appropriately reflected the totality ofMr Brown's offending on 20 March 2018 as well as his previous history.[21] I accept Ms Tarrant was genuinely unclear as to the position but Mr Dillon forthe Crown has provided an updating memorandum which confirms that in factMr Brown had pleaded guilty to all five charges and the sentencing before JudgeWilson was indeed intended to address those five charges.[22] Despite this Mr Dillon rightly concedes there is confusion as to the finalsentence imposed, and it is appropriate for the matter to be considered afresh in thisCourt. The central thrust of Mr Dillon's submission was, notwithstanding the error,the sentence apparently imposed was nonetheless not manifestly excessive andtherefore the appeal should not be allowed.Assessment[23] As a matter of first principles, when judges are sentencing for multipleoffences:11(a) the sentence must reflect the totality of the offending;(b) appellate courts will not insist that the total sentence is arrived at in aparticular way; but11 R v Xie [2007] 2 NZLR 240 (CA) at [17], citing R v Barker CA 57/01, 30 July 2001 at [10].(c) the total sentence must represent the overall criminality of the offendingand the offender.[24] Sections 84 and 85 of the Sentencing Act 2002 provide guidance on whenconcurrent and cumulative sentences are "generally appropriate", but they do nottrump the "central principle of sentencing for multiple offending", that the totalsentence must represent the overall criminality of the offending and the offender.12[25] The guidance afforded by s 84 indicates in this case concurrent sentenceswould have been more appropriate, because the offences are of a similar kind and partof a connected series of offences. But where the total sentence appropriate for thetotality of the offending exceeds the maximum penalty for any one offence, cumulativesentencing must be used.13 That is the approach the Judge took in this case and onethat Mr Dillon endorses.[26] Mr Dillon submits the three driving offences which carry maximum penaltiesof imprisonment were sufficiently serious that a sentence of more than three months'imprisonment was required. He points out the maximum term of imprisonmentavailable was nine months' (excluding the offensive weapon charge).[27] Mr Dillon underlines that the Court must impose a penalty near the maximumprescribed for the offence if the offending is near to the most serious of cases for whichthe penalty is prescribed, unless the circumstances relating to the offending make thatinappropriate,14 and in support of that submission refers to the decision of Heath J inWilson v Police. Applying the Wilson decision Mr Dillon submits Mr Brown is arecidivist offender, and endorsed Judge Wilson's description of Mr Brown's record as"one of the most concerning [records] of recidivist bad driving" he had seen.Accordingly he submits a sentence close to the maximum is appropriate.[28] Approached another way, Mr Dillon submits the sentence could comprise thefollowing elements in order to retain the end sentence that Judge Wilson ultimatelyarrived at:12 At [18].13 At [19].14 Sentencing Act 2002, s 8(c).(a) first a cumulative starting points of two months for each of the threedriving offences carrying terms of imprisonment, producing an overallstarting point of six months;(b) a two month uplift for Mr Brown's driving history;(c) a further two month uplift for possession of the offensive weapon; and(d) applying a 25 per cent discount for Mr Brown's guilty plea, this wouldtake the end sentence to seven a half months' imprisonment.[29] The problem with this approach, as I have discussed with Mr Dillon, is thatwhichever way the calculation is approached the end sentence reached byJudge Wilson can only be justified by sentencing Mr Brown to imprisonment on theoffensive weapon charge which Judge Wilson had specifically concluded was not asignificant component of the offending, and which was appropriately dealt with byway of conviction and discharge. Having considered Judge Wilson's reasons fortaking that approach on the offensive weapon charge I see no reason to disagree withthat approach.[30] As a result if no change is made to the offensive weapon sentence themaximum term of imprisonment available to Judge Wilson was nine months which,after deducting the 25 per cent that Judge Wilson accepted was appropriate forMr Brown's guilty plea, would have resulted in an end sentence of six and threequarter months' imprisonment. The sentence imposed on Mr Brown was thereforesignificantly greater than the maximum that could have been imposed in thecircumstances, and thereby manifestly excessive. The question then turns to whetherthe maximum period of imprisonment is appropriate for each of the imprisonabletraffic charges and if not what sentence should have been imposed on Mr Brown?[31] In considering the issue of maximum sentences I bear in mind the decision inFoulds v Police, where Laurenson J allowed an appeal against a sentence of threemonths' imprisonment for a single charge of dangerous driving where the defendanthad a background of prior convictions. Laurenson J concluded:15As I have said, this was a bad case of dangerous driving and there is thebackground of previous convictions. Despite this I consider that to imposethe maximum sentence in even these circumstances cannot be said to becorrect in principle for the simple reason that by doing so there is no room leftto recognise worse cases. I accordingly find that the appeal as to sentenceshould be allowed.[32] In this case I note that to get to the maximum on the reckless and dangerouscharges Judge Wilson referred to Mr Brown's previous history which was then countedagain in Judge Wilson's calculation of an uplift on those same charges.16[33] Given those issues I consider the following approach to better reflect thetotality of the offending and in particular, not only the appalling driving of Mr Brownon 20 March 2018 but also his previous appalling driving record as well as taking intoaccount the purposes and principles of the Sentencing Act 2002 that are applicable inthis case.[34] First, as I have already noted, there is no basis to alter Judge Wilson'sconclusions with regard to the possession of offensive weapon charge and I confirmthat Mr Brown is convicted and discharged on that charge.[35] Secondly, on the three traffic charges carrying terms of imprisonment, twomonths imprisonment is appropriate on each of those charges, to be servedcumulatively. I note in particular the failure to stop for blue and red flashing lightsthat was not specifically considered by Judge Wilson was a significant charge in thecontext of Mr Brown's offending. Put simply it was the precursor to everything thatfollowed. Had Mr Brown stopped when required to do so the resulting pursuit wouldnot have been necessary nor indeed the resulting inconvenience, damage to propertyand potential safety risk to the Te Awamutu community.[36] Thirdly, I consider that a significant uplift is appropriate for Mr Brown'sprevious history. That uplift is two and a half months. It is apparent that given15 Foulds v Police HC Auckland A32/99, 24 March 1999 at 4.16 See [12] and [13] above.Mr Brown's history and the events of 20 March 2018 he is indeed getting close to themaximum seriousness for the offences for which he was charged and as a result it doestake him close to the maximum penalty. Adding these together I come to a startingpoint of eight and half months' imprisonment, which after deducting 25 per cent forMr Brown's guilty plea as considered appropriate by Judge Wilson, and rounding theresulting figure I come to an end sentence of six and half months' imprisonment.[37] As will be apparent this is a significantly different end sentence and thereforeconclude the sentence previously imposed was manifestly excessive.Result[38] The appeal is therefore allowed and the sentence imposed in the District Courtis replaced and substituted by a term of six and half months' imprisonment. There wasno challenge to the period of disqualification imposed by Judge Wilson and I confirmthat part of Mr Brown's sentence._______________________________Powell J