LEIGH BRYAN PRICE v THE NEW ZEALAND POLICE [2019] NZHC 2123

LEIGH BRYAN PRICE v THE NEW ZEALAND POLICE [2019] NZHC 2123 [20 August 2019]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2019-443-22[2019] NZHC 2123BETWEEN LEIGH BRYAN PRICEAppellantAND THE NEW ZEALAND POLICERespondentHearing: 20 August 2019Appearances: J M Woodcock for AppellantJ E Bourke for RespondentJudgment: 20 August 2019JUDGMENT OF GRICE JBackground1[1] Mr Price was sentenced to 10 months' home detention in the District Court on5 July 2019.2 He had earlier entered pleas of guilty on the following four charges:(a) Two charges of possession of a cannabis plant;3(b) One charge of presenting an imitation firearm;4 and(c) One charge of possessing an imitation firearm while committing theoffence of threatening grievous bodily harm.51 This decision was delivered orally on 20 August 2019. The written form has been edited andfootnoted before distribution.2 R v Price [2019] NZDC 13061.3 Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2); maximum penalty of three months' imprisonmentor $500 fine.4 Arms Act 1983, s52(2); maximum penalty of three months' imprisonment or a fine of $1,000.5 Section 54(2); maximum penalty of five years' imprisonment.[2] Mr Price appeals his sentence on the grounds the sentence was manifestlyexcessive as the Judge erred by adopting a starting point that was too high.Background[3] The four charges against Mr Price arose from two separate incidents. The firstcharges of presenting an imitation firearm and possessing a cannabis plant arose on16 January 2019. The second group of charges for possessing an imitation firearmwhile threatening grievous bodily harm and possessing a cannabis plant arose on24 March 2019.16 January 2019[4] In relation to the events on 16 January 2019, in the early afternoon Mr Pricewas at home when the victim called in at his address to confront him about sellingcannabis to children in the area. Mr Price came outside holding a "glock" style pistolin his right hand. He pointed it in the air and fired it twice. The victim was terrifiedand fled from the address as she feared for her life. She called the police who locatedMr Price and searched his address. They discovered two race starter pistols with blankcartridge cases and 76 grams of cannabis. In an explanation for his offending, he saidthe cannabis was his for personal use and that he had not seen any "lady".24 March 2019[5] On 24 March 2019 Mr Price became involved at a street argument inNew Plymouth. He had parked his car. The victim parked his car behind Mr Price'scar and got out. When the victim began to walk away, Mr Price approached him. Heyelled at the victim, then returned to his car to reach for his imitation pistol. He thenpointed it at the victim before firing it three times in the victim's direction. The victimtried to get away and fell into a bush. Mr Price followed him and directed the gun athim three more times. The imitation gun made orange flashes and bangs when it wasfired. The victim stumbled out of the bushes clutching his abdomen before drivingaway.[6] The police went to Mr Price's address shortly afterwards. His car was parkedout front and the bonnet was warm to the touch. His home and car were searched and426 grams of cannabis was found.[7] Two blanks were also recovered from the ground near Mr Price's car. Thevictim suffered grazes to his hip, knee and hand. Mr Price admitted the cannabisoffending but claimed to know nothing of the imitation gun offending.The sentencing[8] At the sentencing on 5 July 2019 the Judge noted that Mr Price had disputedthe police summary of facts on which he had earlier based his guilty plea when he wasinterviewed for the PAC report. Counsel for Mr Price explained this by submittingMr Price's attempting to make himself look better in the eyes of the probation officer.[9] The Judge summarised the relevant portions of Mr Price's criminal history,which included convictions for drug, firearm violence and threatening offences. Therewere a small number of offences for breaching Court orders and bail.[10] The Judge adopted a starting point of 12 months' imprisonment for each of thesets of charges. The cumulative total adopted as the starting point was therefore twoyears' imprisonment.[11] The Judge then uplifted this by three months' to recognise the aggravatingfeatures of the offending. They were Mr Price's criminal history and the fact Mr Pricewas on bail when the second incident occurred.[12] A seven-month discount was given to recognise the guilty pleas and Mr Price'spersonal circumstances.[13] The result was an end sentence of 20 months' imprisonment which wasconverted to 12 months' home detention. Orders were also made for destruction ofboth the cannabis and the imitation firearms.Standard of appeal[14] Mr Price has brought his appeal under s 250 of the Criminal Procedure Act2011. An appeal against sentence is an appeal against a discretion, and therefore, mustonly be allowed if the Court is satisfied there has been (for any reason) first, anintrinsic error in the sentence imposed and secondly a different sentence should beimposed.6 The focus is on the final sentence and whether that was within the availablerange, rather than on the exact process by which it was reached.7 As the Court ofAppeal in R v Peters said:8[13] As this Court has indicated on many occasions, the issuewhether a sentence is manifestly excessive or manifestly inadequate orinappropriate must be examined in terms of the sentence actually passedrather than the precise process by which it is reached. Thus, if a sentencemight be the product of a starting point which is itself manifestlyexcessive but is in the result ameliorated by allowances made formitigating factors so as ultimately to be brought to a point ofacceptability, this Court will be disinclined to intervene throughconcern over any particular component. This is very much such a casehere.Submissions and analysis[15] The Judge noted in the decision that a starting point of 12 months'imprisonment was adopted for each group of offences. He took the culminative 24months' imprisonment as a start point.[16] However, the offences of 16 January only attract three months' imprisonmentfor each offence. The Judge should have noted that the lead offence (of 24 March2019) was that of possessing an imitation firearm while threatening grievous bodilyharm, which has a maximum penalty of five years imprisonment.[17] Putting that to one side, Mr Price argues the Judge adopted a starting point thatwas too high. He recognises there is no tariff decision for the offence of possessingan imitation firearm while threatening grievous bodily harm but says the starting pointshould have been 10 months imprisonment.6 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.7 Ripia v R [2011] NZCA 101 at [15].8 R v Peters CA12/03, 14 May 2003 at [13].[18] Ms Woodcock for Mr Price cited a number of decisions,9 I note thoseauthorities are distinguishable as they involve different lead offences not involvingguns and different circumstances to those of the present case.[19] The most helpful as counsel agreed was that of R v Sykes.10 Mr Sykes wassentenced for threatening to kill and possessing a pistol. He became enraged afterhearing a family discussion and began to smash items in the house. He threatenedmembers of the family then obtained a pistol before approaching the victim andpointing it at her head and saying "I will fucking kill you." He then walked aroundthe lounge saying "I'm going to kill you, I'm going to kill them". He threw the pistolon the ground before leaving. Although the gun was ready and loaded it could not befired as the wrong size of ammunition had been loaded. On the lead charge ofthreatening to kill the Judge adopted a starting point of 12 months' imprisonment, heincreased that to 18 months' in light of the repeated threats, the proximity of the victimand the use of a pistol.[20] There are a number of similarities as well as differences between that case andthe present. The similarities include pointing the gun to underscore a threat; repetitionof the threats; the proximity of the defendant to the victim; and the use of a firearm oror in this case an imitation firearm.[21] Sykes also involved several factors that make it more serious than the presentcase. First, the charge involved of threatening to kill which has a maximum sentenceof seven years imprisonment.11 Whereas in this case the charge of possession of animitation firearm while threatening grievous bodily harm carries a maximum periodof five years imprisonment.12 An imitation firearm can never fire live rounds asMs Woodcock emphasised. However, the gun in Sykes could have done so if it hadbeen properly loaded. It is not clear from the judgment whether Mr Sykes knew it hadbeen improperly loaded.9 Baldwin v Police HC Wellington CRI-2005-485-40, 18 October 2005; Butler v Police HCHamilton AP162/93, 13 December 1993; McKinlay v Police HC Rotorua CRI-2011-470-28, 28November 2011; Dawson v Police [2012] NZHC 3298.10 R v Sykes HC Christchurch CRI-2009-009-2603, 19 May 2009.11 Crimes Act 1961, s 306.12 Arms Act, s 54(2).[22] Ms Woodcock also submits that Mr Sykes had repeated a threat to kill. That isnot present here.[23] However, in this case the gun actually fired blanks at the victim. That adds anelement designed to evoke fear. The victim could not have known at that stage thegun was not real and so he was not at risk of being shot. In this case a victim was alsopursued by Mr Price. Those are elements exacerbating the offending.[24] Ms Woodcock for Mr Price referred to Faaleaga v R in which the Court ofAppeal discussed key factors in assessing the culpability of threatening to kill or causegrievous bodily harm. The following have some relevance here:13(a) The premeditation of the threats;(b) The nature and frequency of the threats;(c) Links to earlier violence;(d) The ability of the offender to carry out the threat;(e) Actual danger to the victim; and(f) The use of a weapon.[25] I recognise that Mr Price has not been convicted of threatening grievous bodilyharm, so he has only a conviction for possessing an imitation firearm while threateninggrievous bodily harm, nevertheless those factors I have listed are of some assistancein assessing an appropriate starting point.[26] In the present case: a weapon was present; there was no actual danger to thevictim; the threats were not able to be carried out due to the gun being an imitation;there was no earlier violence; but the threats were frequent and serious in one caseinvolving six shots at close range and the imitation gun made realistic noises. While13 Faaleaga v R [2011] NZCA 495 at [11].there was limited premeditation before the threats were made nevertheless Mr Pricewas ready for trouble in that he had the imitation firearm to hand.[27] In my view, considering all the factors, the starting point of 24 months'imprisonment adopted by the Judge was too high in the circumstances. The Crownaccepts that that might be the position although disagrees with the defence submissionsas to the appropriate starting point. In the circumstances, I have reached a conclusionthat 14 months', or one year and two months' imprisonment, is more realistic andappropriate.[28] The method adopted by the Judge means that no appropriate recognition wasgiven to the totality of the offending. If an uplift of four months' imprisonment isapplied to recognise Mr Price was also being sentenced for the other offending andthis brings the sentence to 18 months' imprisonment.[29] A further uplift of three months' imprisonment would recognise Mr Price'scriminal history and the fact the offences occurred while he was on bail, brings thesentence to 21 months' imprisonment.[30] Finally, the Judge gave a discount of 7 months' imprisonment to recogniseMr Price's guilty plea and his personal circumstances. This equates to 33 per centdiscount of the modified sentence of 21 months that I have adopted. I do not proposealtering that discount in light of the lower starting point, as on one view that wouldartificially lower or alter the Judge's assessment is, of Mr Price's personalcircumstances in the case. It does not appear to be an inappropriately high discount.If 25 per cent is taken as the guilty plea discount, then Mr Price receives a near 8 percent discount for the other personal circumstances mentioned in the decision.[31] This reduces Mr Price's sentence to 14 months imprisonment. Converting thisto home detention in the usual way, results in an end sentence of seven months' homedetention.[32] I believe home detention is the least restrictive sentence option available inlight of Mr Price's serious criminal history and the facts of this offending and that itinvolved guns.Conclusion[33] Therefore, I conclude the Judge erred by adopting a starting point that was toohigh. This rendered the end sentence manifestly excessive. The sentence of10 months' home dentition is quashed and substituted with a sentence of sevenmonths' home detention.14 The destruction orders in the District Court decision areconfirmed.[34] Accordingly, I allow the appeal. The sentence is quashed and substituted witha sentence of seven months home detention on the lead charge of possessing a firearmwhile threatening grievous bodily harm and one months home detention on each ofthe other charges all to be served concurrently._________________Grice JSolicitors:Crown Law Office, Wellington for Respondent14 To clarify, this starts on the previous commencement date of 5 July 2019.