HAZEL v NEW ZEALAND POLICE [2020] NZHC 609

HAZEL v NEW ZEALAND POLICE [2020] NZHC 609 [13 March 2020]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2020-441-4[2020] NZHC 609BETWEEN LUCAS JAMES HAZELAppellantAND NEW ZEALAND POLICERespondentHearing: 13 March 2020Appearances: A McPherson for AppellantM Mitchell for RespondentJudgment: 13 March 2020JUDGMENT OF GRICE JIntroduction1[1] This is a sentence appeal against a sentence of 29 months' imprisonment andtwo years' driving disqualification. That sentence was imposed in relation to threecharges. The appeal is advanced on the basis that the Judge failed to take into accountthe totality principle and therefore the sentence was manifestly excessive. In addition,the appellant contends there was also an error of principle in failing to recognise aguilty plea discount in relation to some of the charges.1 This decision was delivered orally on 13 March 2020. The written form has been edited andfootnoted before distribution.Factual Background[2] The appellant, Mr Hazel, was sentenced on a charge of reckless driving causinginjury (to which he had entered a guilty plea),2 two charges of assault in a domesticrelationship (to which he had entered guilty pleas before trial),3 and a charge4 of theftof personal property valued at $1,000.5 for which he been convicted following adefended hearing.6[3] The reckless driving causing injury charge arose from events on a Saturdaymorning. At about 1.15am the appellant was driving a car with two passengers. Thepolice signalled for him to stop and activated their police vehicle lights. The appellantdrove off and accelerated to speeds in excess of 150 kilometres an hour in an area witha speed limit of 50 kilometres an hour. Having driven along the wrong side of the roadthe car became airborne and when it landed the appellant lost control. The car skiddedthrough a fence and crashed into a house damaging a caravan. One passenger inMr Hazel's car sustained a serious laceration to her back which revealed bone. Theother passenger sustained a forehead injury requiring surgery. The damage to theproperty totalled in excess of $5,000.7 Mr Hazel fled the scene and was not found fora number of weeks.[4] The second lot of charges relating to domestic assaults concern two incidents.On 24 June 2019 in the vicinity of the Hawkes Bay Hospital, Mr Hazel and his partner,the victim, began arguing. She ran away. Mr Hazel chased her into the hospital andstopped her from escaping. He grabbed her around the head, dragged her out and liftedher off the ground pushing her down the stairs. The victim tried to get aroundMr Hazel but was blocked from doing so.82 Land Transport Act 1998, s 36(1)(a): maximum penalty of 5 year's imprisonment or a fine of$20,000.3 Crimes Act 1961, s 194A: maximum penalty of 2 years' imprisonment.4 This separate conviction was after a trial also by Judge Adeane. The judgment is part of the file:Police v Hazel [2019] NZDC 22193.5 Crimes Act 1961, ss 219 and 223(c): maximum penalty of 1 year's imprisonment.6 Police v Hazel [2020] NZDC 1342 ("the District Court Judgment").7 Respondent submissions at [8].8 Summary of Facts.[5] On 15 July 2019,9 the victim and Mr Hazel had been arguing while they weredriving and both jumped out of a moving vehicle. The vehicle rolled or drove into aditch. They were then picked up by a member of the public. The two continued theirarguing. At one point the appellant slapped the victim with a backhand which wasapparently quite painful according to the victim. He pushed and held her down in thefootwell of the motor vehicle in which they were travelling.[6] The third charge relates to theft of a handbag. Mr Hazel was found guilty aftera defended hearing. The facts were that on 8 December 2018 the appellant and anothermale took the complainant's handbag. Family members tracked the bag via thetracking system on the cell phone and after confronting the males and asking them togive back the phone, the two men absconded. The other male was eventually detainedby the family while the appellant was able to escape. The items stolen included a cellphone that had filmed the complainant's now deceased father who was terminally ill.The cell phone, the Crown indicate, did has never been returned and the record hasbeen lost.Law on appeal against sentence[7] There is no contest as to the applicable law. It is set out in the respondent'smemorandum and that is:5. An appeal against sentence can only succeed if the appellant candemonstrate both that there has been an error in the sentence imposed,and that a different sentence ought to have been imposed.6. The test remains whether a sentence is manifestly excessive; in otherwords, whether it is substantially more severe than it ought to have beenwhen regard is had to the seriousness of the offending and theculpability of the offender.7. The focus in all cases is on the end sentence, and not on the process bywhich that sentence was reached:1The High Court will not intervene where the sentence is within therange that can properly be justified by accepted sentencingprinciples. Whether a sentence is manifestly excessive is to beexamined in terms of the sentence given, rather than by the processby which the sentence is reached.9 Charging Documents. Note that the District Court judgment states February and June at [1].Law on cumulative sentences[8] It is also common ground that when a Judge is sentencing on multiple offencesthe Court must have regard to the totality principle in s 85 of the Sentencing Act 2002(the Act). The Court must decide whether to impose concurrent or cumulativesentences and it must ensure the total sentence is proportionate to the gravity of theoverall offending.[9] Cumulative sentences are generally appropriate if the offences are different inkind, whether or not they are connected in a series of offences.10 Concurrent offencesare generally appropriate if the offences are of a similar kind and a connected series.11[10] For a sentence appeal to be successful, as I have outlined, there must be anerror in the sentence imposed on conviction. That may include a matter of totality,and that a different sentence should be imposed.12District Court judgment[11] The Judge sentenced Mr Hazel to 29 months' imprisonment and two year'sdisqualification from driving. The Judge adopted a starting point for the drivingoffence of 24 months' imprisonment. He then discounted that by some 15 percentdown to 20 months' imprisonment (although no specific reason was given for thediscount it is clear it was for the guilty plea). The sentence is then uplifted for thedomestic violence offences by six months' imprisonment which he says are "afterdiscounts for the guilty pleas"13 and for the theft charge, a three-month uplift is thenadded.[12] The Judge then comments the final sentence is 29 months' imprisonment. Theassaults added six months to the 20 months for the reckless driving and theft addedthree months' imprisonment, to be served concurrently.1410 Sentencing Act 2002, s 84(1).11 Section 84(2).12 Criminal Procedure Act 2011, s 250.13 District Court judgment at [10].14 The Judge summarises this in his judgment at [12].Issues on Appeal[13] Mr Hazel's position is that the sentence derived from an error in the Judge'sapproach and that the end sentence was manifestly excessive. He points to three errorsin approach:(a) the starting point on the reckless driving charge was too high;(b) no discount was given for the guilty plea in respect of the domesticviolence offences; and(c) no account for totality was considered when applying the uplifts to thereckless driving charge sentence.[14] The Crown's position is that the end sentence is well within the range availableon accepted sentencing principles and should not be interfered with.15[15] I now turn to look at each of the issues separately.AnalysisWas the starting point on the reckless driving charge too high?[16] As I have indicated the Judge started at 24 month's imprisonment. He said inrelation to the reckless driving charge:[2] Counsel submits correctly that the lead charge is the reckless drivingcausing injury. The offence, of course, carries with it a maximumsentence of five years' imprisonment. The facts here are highlyaggravated. The driving occurred at about 1.15 am on a Saturdaymorning. The defendant was driving a Subaru motor vehicle onKaramu Road South. He had two passengers, one in front, and oneasleep in the back. The police signalled him to stop, activated red andblue lights, and the defendant responded by accelerating away alongRailway Road. He turned into Gascoigne Street, which has a postedspeed limit of 50 kilometres per hour, and there was travelling atspeeds in excess of 150 kilometres per hour.[3] At the end of that street, which is controlled by a give way sign, hetravelled straight through on the wrong side of the road at such speed15 Respondent submissions at [4].that his car became airborne, landing at an angle on Oliphant Road,where the defendant completely lost control of the vehicle whichskidded through a fence. Wooden fencing components came throughthe doors of the car, the vehicle struck the side of a house and came tostop in the front garden.[4] The defendant made off but the passengers were located with seriousinjuries. The result was that one female passenger suffered a seriouslaceration to her back, where bone was visible. The other sustained aserious blow to the forehead which required surgical closing. Damagein the order of $5,600 was caused to the various items of propertyinvolved.[6] The aggravating features here are the gross recklessness involved asevidenced by the outcome, fleeing the police at extreme speed. All ofthese features are present to a high degree. There is also serious injuryand property damage present, both to a moderate degree.[17] The appellant accepts that the driving did involve excess speed andrecklessness as well as failing to stop resulting in a crash. The appellant says theinjuries could be assessed as moderate to the passengers and they were also to a certainextent complicit in that they were in the car for the ride. The appellant also makes thepoint that no other vehicles were involved.[18] Mr Hazel submits an appropriate starting point would be 12 months withreference to two cases: Kerr v Police16 and Gibson v Police.17 Mr Hazel argues thatthere was excess speed and failing to stop for police resulting in a "crash with onlymoderate, but treatable injuries" and therefore his case is less serious than Kerr. Thepoint is also made there was no intention to injure victims and no drunk drivingelement present. As to the latter, while the Crown do not rely on any alcohol or drugsbeing present Ms Mitchell made the point that Mr Hazel absconded and was not foundfor some time so there was no ability to administer any alcohol or drug testing in anyevent.[19] However, it is difficult to compare facts of cases and reckless driving cases inparticular will involve multiple factors and are very difficult to compare. However, interms of comparison with Kerr in that case there was no police chase and in this case16 Kerr v Police, Invercargill HC, 25/20/2011, CRI-2011-425-37 ("Kerr").17 Gibson v Police, Christchurch HC, 18/12/2009, CRI-2009-409-000205.Mr Hazel was driving in excess of 50 kilometres compared to the speed of 90 to 100kilometres in Kerr.18 A substantial and significant difference in my view. I noted thedrink driving element certainly occurred in Kerr and is has not been established in thiscase. In relation to the types of injuries I accept that the two passengers in Kerrsuffered reasonably serious injuries and it may be that the injuries here could beassessed as less serious. However, standing back and looking at the whole in my viewthere is not much assistance to be taken from Kerr. In that case the starting point was20 months. Comparing this with Kerr I do not consider the Judge was out of range at24 months.[20] As for Gibson, there needs to be caution applied as the judgment does notexplicitly state that the 12 months' imprisonment was the starting point – that was endcustodial sentence. I find it difficult to compare this case with Gibson.[21] The Crown puts forward a number of cases. The general point on these casesis that much higher starting points have been adopted and not appealed. I find themost analogous case put forward by the Crown was Walshe v Police. In that case astarting point of two years and eight months' imprisonment was adopted for anappellant's reckless driving causing injury. Justice Simon France described thatsentence as lenient".19 The key aggravating factors including the fact the accidentoccurred in the course of evading police, that Mr Walshe was forbidden from driving,and the injuries of moderate seriousness was sustained by victims. There had been apersistent course of deliberate bad driving in that case.20 Many of those factors applyto the present case.[22] The respondents also point to a number of other cases which to a greater orlesser degree compare in some elements but not all so I do not consider it is necessaryto go through those.[23] In my view the starting point of 24 months was well within the rangeparticularly given the elements present here which I have listed and also the fact that18 Kerr, above n 16, at [18].19 Walshe v Police [2019] NZHC 3068 at [21].20 At [9].Mr Hazel did not and has never held a driver's licence. The driving also posed aserious risk to other road users which luckily he did not meet in the course of hisdriving. The excessive speeds achieved of over 150 kilometres, failing to give way atan intersection and the ultimate loss of control after driving down a street the wrongway in my view add to the seriousness of the offending.[24] Therefore, I do not consider the Judge made an error with the starting point.Was a discount given for the guilty plea relating to the domestic violence offences?[25] The appellant argues that no guilty plea discount was given or at leastarticulated by the Judge even though Mr Hazel had entered guilty pleas to the twocharges of assault. This led, in Mr Hazel's submission, to an unreasonably longsentence.21 For Mr Hazel, Ms McPherson submitted that the time lapse beforeresolution of these offences predated the change of counsel. As soon as the change ofcounsel occurred matters moved along quickly and a guilty plea was entered beforetrial.[26] The Crown contends that a starting point in excess of eight months'imprisonment was available to the Judge. The respondent's reason is that the domesticassaults were not minor. It says that previous cases have held that there is no tariff formale assaults female charges, with the sentences ranging from two years to 12 months.Ms Mitchell cites the decision of Justice Brewer in Wati.22 Ms Mitchell also submitsthat the guilty plea was applied although not articulated and in this case the appellantalso had a history of domestic violence which is also relevant.[27] I accept Mr Hazel's point that there was no articulated amount for the discountthat was given by the Judge. The Judge simply said "I place [the domestic violenceuplift] at six months' imprisonment after discounts for a guilty plea".23 That was notfollowing the formula established in Hessell.21 Appellant submissions at [14].22 Wati v R [2015] NZHC 2064 at [8].23 District Court judgment at [10].[28] However, in my view even allowing for a substantial discount for a guilty pleathe final figure was well within the range. When considering the two occasions ofviolence taken alongside a history of domestic violence I consider it was open to theJudge to find six months' imprisonment as an appropriate uplift in the present caseonce the guilty plea was factored in. The summary of facts recounts the incidents.The first, occurred in a car. It involved intentional and prolonged violence toward thevictim. The defendant jumped out of the driver's seat into the back seat when he wasdriving the car and then followed the victim out of the car when she jumped out of thecar. The car then rolled into a ditch. They were picked up by a third party and whenthey were in that car the defendant continued by hitting the victim with a back hand tothe face which she said was very painful. He then pushed her into the back footwellof the vehicle.[29] The second assault happened outside Hawkes' Bay Hospital as I haverecounted. In that assault the defendant chased the victim, dragged her outside, andthen pushed her down steps. Eventually she got away.[30] It is apparent that while the Judge did not consider those charges as serious asthe reckless driving charge they were not trivial by any means. Therefore, in my viewthe sentences even allowing for a full 25 per cent discount, which of course was notarticulated, were well within the range available for such offending. In my view theJudge made no error in that respect.Was totality accounted for in the uplift?[31] It is necessary to stand back and look at the totality of the offending. This isin light of the final sentence imposed of 29 months' imprisonment and two years'disqualification.[32] In those circumstances I do not consider that the total sentence was outside therange available. It was not manifestly excessive having regard to the number andnature of aggravating features associated with the appellant's driving, secondly thenature of the domestic violence and the defendant's history domestic violence andfinally, the fact that the sentencing Judge at the same time cancelled the appellant'ssentence of community work associated with earlier driving offending so the presentsentence effectively serves as the appellant's account for that incident as well.Result[33] Therefore, I consider the final sentence was well within the range. It was notmanifestly excessive and the appeal is dismissed._________________Grice J