BROWNLEE v NEW ZEALAND POLICE [2018] NZCA 217

BROWNLEE v NEW ZEALAND POLICE [2018] NZCA 217 [26 June 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA140/2018[2018] NZCA 217BETWEEN MISHAQ FENDAR CYPRESS ARCHIEBROWNLEEApplicantAND NEW ZEALAND POLICERespondentCourt: Brown, Duffy and Katz JJCounsel: C Muston for ApplicantK Peirse-O'Byrne for RespondentJudgment:(On the papers)26 June 2018 at 12.30 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Following a Judge alone trial in the District Court at Whangarei Mr Brownleewas convicted of one charge of injuring with intent to injure and was sentenced totwo years and two months' imprisonment.1 He received a concurrent sentence ofsix months' imprisonment in respect of a charge of assault with intent to injure towhich he had earlier pleaded guilty. His appeal to the High Court was dismissed.21 New Zealand Police v Brownlee [2017] NZDC 27833.2 Brownlee v New Zealand Police [2018] NZHC 215.[2] He now seeks leave to appeal to this Court against the sentence of two yearsand two months' imprisonment. The basis of his proposed appeal is that in calculatingthe sentence the District Court Judge made an arithmetical error with the consequencethat his sentence should have been two years instead of two years two months'imprisonment.The District Court sentence[3] The final sentence of two years two months' imprisonment was calculated inthis way. First, a starting point for the injuring with intent to injure offending wastaken of two years and six months' imprisonment. A three-month deduction wasallowed to take into account provocation.[4] Next a starting point for the assault with intent to injure charge was taken of14 months' imprisonment. Again a three-month deduction was allowed forprovocation. Thus a combined starting point of 38 months' imprisonment wasreached.[5] The following discounts were then to be applied to that starting point:• four months for Mr Brownlee's youth;• two months for remorse;• two months to reflect participation in rehabilitation courses andrehabilitation generally;• four months for pleading guilty to the assault with intent to injure charge.[6] Although the sum of those deductions would result in a final sentence of26 months, the Judge erroneously calculated a figure of 28 months.3 He thenconcluded as follows:43 New Zealand Police v Brownlee, above n 1, at [33].4 At [36].I am prepared from that initial end sentence of two years and four months thatI have made reference to, to reduce the sentence further to take into accountthe totality of the offending by a further two months, but in my view, as I havesignalled, Mr Brownlee, the only sentencing option available to the Courttoday, given the nature of the offending and the gravity of the offending, is aterm of imprisonment.The High Court judgment[7] In the High Court Mr Brownlee appealed his conviction on the injuring withintent charge and both sentences.[8] On the issue which is relied upon as the basis for a grant of leave in this CourtMoore J said:[66] I have considered whether to allow the appeal on the basis the Judge'sarithmetical error places this case into the rare category where what has gonewrong requires correction albeit the sentence imposed is within range.Indeed the Court in Tutakangahau contemplated such a result where thesentencing Judge has made an explicit arithmetical error. But the rationale forsuch an adjustment, that in allowing the appeal the appellate court is givingeffect to the sentencing judge's intentions, is not germane in the presentcontext. After erroneously reaching an end sentence of two years and fourmonths' imprisonment, the Judge applied a further two month reduction toreflect the totality of Mr Brownlee's offending. This brought the end sentencein line with the arithmetically correct result; two years and two months'imprisonment. In my view, the Judge's totality adjustment signals he did notconsider a lesser sentence was available. As such, a correction to account forthe arithmetical error would not give effect to Judge Davis's intentions, andwould amount to "tinkering".Discussion[9] Mr Brownlee seeks to advance again the contention that, because of anarithmetical error, he should have received a sentence of 24 months and thatconsequently the Judge would have been required to consider whether acommunity-based sentence was appropriate.[10] The Crown supports the reasoning in the High Court judgment. The point ismade that the Judge's totality adjustment signals that he did not consider a lessersentence was available, a conclusion bolstered by the explicit statement that the onlyoption available to the Court was a sentence of imprisonment.[11] As this Court stated in R v Xie, the fundamental tenet of the totality principleis that the final sentence must reflect the totality of the offending and that how the totalsentence is made up has never been important.5 The totality principle is designed toensure that an offender does not receive a sentence that is out of all proportion withthe overall gravity of the offending.6[12] In this case, having calculated, albeit by the omission of a two-monthreduction, a sentence of 28 months, in applying the totality principle the Judgeproceeded to reduce the sentence to 26 months. The sentence of 26 months happenedto accord with the sentence which would have been the product of the correctarithmetical process. In the event the error in miscalculation was redeemed. We viewthis case as an instance of the second category of mathematical errors described inFerris-Bromley v R.7[13] Had the Judge arrived at the correct arithmetical result in the first place andturned his mind to the totality principle we consider that it must follow from hisdecision that no further reduction beyond 26 months would have been made. That wasthe appropriate sentence and there was no justification for a sentence less than that.The totality principle would not mandate a different outcome. In terms ofFerris-Bromley, there can be no suggestion that the sentence was manifestly excessive.[14] In these circumstances we are not satisfied that the proposed appeal involves amatter of general or public importance or that a miscarriage of justice may haveoccurred or may occur unless the appeal is heard. Consequently under s 253(3) of theCriminal Procedure Act 2011 we must not give leave for a second appeal.Result[15] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent5 R v Xie [2007] 2 NZLR 240 (CA) at [16].6 Anand v R [2017] NZCA 566 at [37].7 Ferris-Bromley v R [2017] NZCA 115 at [15](b).