FUGLE v R [2022] NZCA 124

FUGLE v R [2022] NZCA 124 [11 April 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA738/2021[2022] NZCA 124BETWEEN LESLIE WILLIAM FUGLEAppellantAND THE QUEENRespondentHearing: 29 March 2022Court: Brown, Lang and Mallon JJCounsel: P L Murray for AppellantM G Wilkinson and T Bagnall for RespondentJudgment: 11 April 2022 at 11.00 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Mr Fugle was charged with intentional damage1 arising from an incident wherethe 20 tonne digger he was operating damaged the vehicle of Council officersundertaking a subdivision compliance inspection. Mr Fugle was found guilty by ajury and was sentenced by Judge Edwards in the District Court at Palmerston Northon 17 December 2021 to two months' community detention, 150 hours of community1 Crimes Act 1961, s 269(2)(a), maximum term of seven years' imprisonment.work and to pay $5,000 by way of emotional harm reparation.2 He appeals hissentence on the grounds that it was inappropriate or manifestly excessive.The offending[2] The relevant circumstances were described in the sentencing notes as follows:[2] The charge arose from an incident on 28 November 2020 when threeofficers of Horizons Regional Council travelled to a subdivision where youare involved in development work. They were there to carry out a complianceinspection. When they arrived, you were working on a small red digger somedistance away from where they parked. They introduced themselves andadvised you they were undertaking a compliance inspection. Youacknowledged their presence but were somewhat dismissive towards them andthen you continued working on that digger. Two of the officers moved furtheroff into the development to carry out a ground inspection. The man thatremained near the two vehicles was operating a drone from the back of one ofthem.[3] You then drove up to the vehicles in a yellow 20 tonne digger whichhad been parked some distance away when they arrived with the aim of usingit to spread metal which had been unloaded at the entrance to a cul-de-sacopposite where the vehicles were parked. You asked the officer who wasoperating the drone to move the vehicles. He told you he could not becausehe had to wait until the drone landed and he said he would ring the officer whowas in charge of the compliance inspection.[4] You became both agitated and abusive to that officer and to the othertwo when they returned, insisting that they move the vehicles and insistingthat you carry on that work at that particular time, rather than doing somethingelse until they finished with the drone and left.[5] The evidence at trial was that at one stage [you] were banging thebucket of the digger on the ground in an intimidating manner and at anotherpoint you swung the digger bucket over the vehicles and where the officerswere standing. This action could be seen in footage one of the officers tookof the incident.[6] A charge of intentional damage can be prosecuted on the basis it wasintentional or reckless. By the conclusion of the trial, the Crown case wasbased on recklessness, but in the context of your overall behaviour,recklessness at the higher end. You are a skilled and experienced diggeroperator. The Crown case was that what happened when you hit one of thevehicles with the digger was not a momentary lapse of attention as youclaimed, but rather, you were angry with the situation and with the complianceofficers' presence and were reckless as to the consequences of continuing towork in such close proximity to the vehicles.2 R v Fugle [2021] NZDC 25140.District Court sentencing[3] The Judge, who had presided at the trial, commenced by observing thatalthough in her view Mr Fugle's acts were intentional, the Crown case had ultimatelybeen put to the jury on the basis of recklessness. Hence the sentencing proceeded onthat basis as the jury had not been asked to distinguish between the two in theirverdict.3[4] The Judge proceeded to refer to a sentence indication given by another Judgeand Mr Fugle's earlier offer of reparation.4 She addressed the submission that analternative to a sentence of community detention should be considered, referring totwo authorities5 cited for Mr Fugle where the sentences were imposed comprising acombination of community work and reparation in instances involving deliberatedamage.6[5] However the Judge considered that Mr Fugle's behaviour in the incident was afactor which aggravated the offending, commenting that he could have waited for theinspection to finish before undertaking the particular piece of earthmoving in the areawhere the Council vehicles were parked and which resulted in the damage.7[6] In response to the submission that a sentence of community detention wouldimpede Mr Fugle's ability to travel overseas for business reasons, which was advancedas the main reason against imposing such a sentence, the Judge indicated a willingnessto consider a combination of community detention and community work at adjustedlengths to accommodate that course.8 Ultimately the Judge settled on a combinationof sentences.93 R v Fugle, above n 2, at [7].4 At [9]–[10].5 Lynch v Police HC Wellington CRI-2008-485-82, 1 September 2008; and Watters v PoliceHC Invercargill CRI-2007-425-43, 5 February 2008.6 R v Fugle, above n 2, at [11].7 At [13]–[14].8 At [15].9 At [17].Nature of the appeal[7] The sentence appeal is brought under s 244 of the Criminal Procedure Act 2011(CPA). Section 250(2) of the CPA provides that such an appeal must only be allowedif the Court is satisfied that for any reason there was an error in the sentence imposedand a different sentence should have been imposed. The Court must dismiss the appealin any other case.10 Section 250(2) makes no express reference to "manifestlyexcessive", which is a ground of appeal advanced in this case. However, inTutakangahau v R this Court held that under that section there was to be no changefrom the approach taken under earlier statutes concerning sentence appeals includings 121(3)(b) of the Summary Proceedings Act 1957 which referred to "clearly excessiveor inadequate or inappropriate".11[8] Mr Fugle's case on appeal was advanced on three bases:(a) errors in the judgment: omission to identify a starting point; thetreatment of reparation; and inadequate comparison with relevantcases;(b) Mr Fugle's level of culpability; and(c) Mr Fugle's personal circumstances.Discussion[9] Mr Murray, counsel for Mr Fugle, first sought to identify a number of errors inthe sentencing notes. He drew attention to the fact that the Judge neither identified astarting point nor quantified a reduction in sentence for the offer of reparation, whichhe described as a departure from the methodology in R v Taueki12 as modified inMoses v R.13 He acknowledged however that the focus on appeal is the end result andthat, while the assessment of that result is aided when the sentencing process is clearly10 Criminal Procedure Act 2011, s 250(3).11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26], [33] and [35].12 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.13 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.set out,14 the failure to identify the starting point or quantify a personal mitigatingfactor does not automatically result in an error. Concerning the latter point, we notethat it is clear from the sentencing notes that the Judge expressly took into accountMr Fugle's offer of reparation in determining the length of the combination ofsentences.15[10] Mr Murray was also critical of the Judge's reference to the sentencingindication given by a different Judge before trial. He contended that the indicationshould not have informed the sentence, given that it proceeded on the different factualbasis that the damage was caused intentionally. However we are satisfied that therewas no error in this respect. The Judge primarily referred to the sentence indicationin the context of noting the fact of the reparation offer and the delay in its payment.16The Judge went on to state expressly that she would be reconsidering the appropriatelength of community detention in the circumstances of the conviction, given that thesentence indication of between four and six months' community detention was on thebasis of intentional or deliberate conduct.17[11] Mr Murray then submitted that Mr Fugle's offending was less serious than ina number of comparative cases. In addition to the two cases referred to at sentencing,namely Lynch v Police and Watters v Police,18 he drew attention to a furthercomparator in Young v Police.19 Mr Murray noted that community detention had beenthe outcome in several cases involving offending more serious than that of theappellant, namely Morgan v Police, Riki v Police and Johns v Police.20 It wassubmitted, therefore, that the Court had failed to comply with the sentencing principlein s 8(e) of the Sentencing Act 2002.21 Mr Murray contended that the offending hadoccurred in the heat of the moment, resulting in a single collision with the Councilvehicle which was merely a glancing impact, although still causing considerable14 Ekeroma v R [2021] NZCA 250 at [16].15 R v Fugle, above n 2, at [14]–[15].16 At [8]–[9].17 At [10].18 Lynch v Police, above n 5; and Watters v Police, above n 5.19 Young v Police HC Auckland CRI-2005-404-222, 21 December 2005.20 Morgan v Police [2012] NZHC 938; Riki v Police [2013] NZHC 282; and Johns v Police [2017]NZHC 1423.21 The Court must take into account the general desirability of consistency with appropriatesentencing levels and other means of dealing with offenders in respect of similar offenderscommitting similar offences in similar circumstances.damage. In those circumstances Mr Fugle's culpability warranted solely a sentence ofcommunity work, not one of community detention.[12] We recognise that the authorities to which Mr Murray referred all involvedintentional and reasonably extensive damage.22 However Ms Wilkinson, counsel forthe Crown, correctly observed that it is necessary to consider a defendant's overallbehaviour, including the risk of safety to others, rather than simply focusing on thevalue of the property damaged and the fact that the Crown case was put to the jury onthe basis of recklessness.23 She also drew attention to Mitchell v R andFinlinson v Police as illustrative of the point that, where there is a risk of safety topeople and property was damaged with intention to cause emotional distress,sentencing starting points and end points of imprisonment are available.24 While thepresent case did not involve such intention, nevertheless there was a substantial riskto the officers and Council property.[13] We agree with Ms Wilkinson's submission that Mr Fugle's offending was notmerely momentary, and instead involved an escalating situation during which therewere a number of opportunities available to take an alternative course of action.We accept that the evidence highlighted a real risk to the safety of the Council officers,who were executing statutory functions, while Mr Fugle was working in the area inthe large digger. In particular we note the fact that Mr Fugle swung the bucket of thedigger over the officers' heads and that one of them had to step out of the way and feltunsafe. That state of affairs was reflected in the Judge's assessment that this wasreckless offending at the higher end.25[14] Finally Mr Murray reiterated the point that Mr Fugle deposed as to hisinvolvement in a large development that requires him to be able to travel freely, bothdomestically and internationally, with the consequence that the restriction ofcommunity detention even for two months was inappropriate. However we considerthat a period of community detention, albeit of short duration, was appropriate to22 Morgan v Police, above n 20, concerned a "tagging spree". In Johns v Police, above n 20, thedamage to vehicles on more than 100 occasions was described as vigilante offending.23 See Johns v Police, above n 20, at [8] and [22].24 Mitchell v R [2013] NZCA 583; and Finlinson v Police [2016] NZHC 224.25 R v Fugle, above n 2, at [6] and [16].reflect both deterrence and the denunciation of Mr Fugle's conduct. The degree ofinconvenience for Mr Fugle's work travel requirements was accommodated to somedegree by the structure of the sentence which the Judge imposed.[15] In our view the nature and duration of the sentence clearly reflected the highlevel of recklessness which Mr Fugle's conduct involved. We do not consider therewas any material error in the Judge's reasoning or that the sentence could be said tobe manifestly excessive in the circumstances.Result[16] The appeal is dismissed.Solicitors:Crown Solicitor, Palmerston North for Respondent