BROWN v NEW ZEALAND POLICE [2017] NZHC 2079

BROWN v NEW ZEALAND POLICE [2017] NZHC 2079 [29 August 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-000190[2017] NZHC 2079BETWEEN MORGAN BROWNAppellantAND NEW ZEALAND POLICERespondentHearing: 28 August 2017Appearances: D G A Reece for the AppellantM L Clarke-Parker for the RespondentJudgment: 29 August 2017JUDGMENT OF PALMER JThis judgment is delivered by me on 29 August 2017 at 12.30 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarCounsel/Solicitors:D G A Reece, Barrister, AucklandCrown Solicitor, AucklandSummary[1] Mr Morgan Brown made a false statement in applying for a New Zealand passport. He used the passport to leave Spain where he faced serious criminalcharges. He is not willing to return to Spain. He was sentenced to 15 months'imprisonment and appealed on the basis he should have had home detention. I agree with Judge Pidwell that a sentence of imprisonment serves the purposes and principles of sentencing. I decline his appeal.Facts[2] On 20 March 2017 Mr Morgan Brown, aged 25, pleaded guilty under s 32 of the Passports Act 1992, to making a statement he knew to be false in an application for a replacement passport. That offence is punishable by imprisonment for up to five years or a fine up to $15,000 or both.[3] The offences were committed in September 2016. His account of events was set out in an affidavit for the District Court. The Crown does not have information that either contradicts or supports the information in the affidavit. Mr Brown had left New Zealand with a friend on 14 June 2015. He arrived in Spain in June 2015. Mr Brown says, one evening, he and his friend met a young woman on the street outside a nightclub in Barcelona. She came home with them, had a few drinks and left. Two days later he and his friend and another flatmate of theirs were arrested and jointly charged with rape. They were remanded in custody for three weeks. The flatmate was released without charge. Mr Brown and his friend were released on bail with a condition of surrender of their passports. Mr Brown said that financial pressures led to him living on the streets of Barcelona and occasionally begging.[4] In New Zealand, he says his father was struggling with severe alcoholism and his brother mental illness. Mr Brown says his father asked him to come home because he was having trouble looking after his brother. Mr Brown applied, through New Zealand, for a replacement New Zealand passport, saying that he had lost his passport in Albert Park when he was out for a few drinks in Auckland on 1 November 2016. This is confirmed by the Crown. Next to the declaration he signedwas a warning that it is an offence knowingly or recklessly to make a false statement to obtain a passport. Nevertheless, this is what he did.[5] Mr Brown's new passport was sent to his home address in Henderson, Auckland and forwarded to him in Spain by an associate. On 8 January 2017 Mr Brown returned to New Zealand using the new passport. Mr Brown says the charges against his co-accused friend in Spain were dropped in February for lack of evidence. Mr Brown also says his Spanish lawyer expects the charges against him will also be dropped.[6] The next hearing of Mr Brown's case in Spain is set for late October 2017. Having talked to his Spanish lawyer, Mr Reece, his New Zealand counsel,understands Mr Brown's presence is required. At the hearing on 28 August 2017 I asked Mr Reece whether Mr Brown would commit to returning to Spain to face the legal processes there, if he is able to do so. Without prejudging the outcome of the appeal, I raised the possibility that a sentence of home detention could be subject to conditions allowing Mr Brown to return to Spain to face the charges there. After taking instructions Mr Reece advised that Mr Brown will not commit to doing so. He said Mr Brown is very sceptical as to whether he will get a fair hearing. He is not sure whether the charge against him will be withdrawn. Mr Brown is not willing to take that chance. While the complainant did not appear in relation to the charges against the other defendants she may do in relation to the charge against him. In addition, he is concerned he may be charged with breach of bail in Spain. Of course, if Spain seeks his extradition, Mr Brown may not have an option as to whether he returns.Department of Corrections report[7] The Department of Corrections assessed Mr Brown as being at low risk of reoffending or causing harm to others. It says Mr Brown told them he has been suffering from depression and anxiety issues and has seen a counsellor for assistance. It assessed his home address as being suitable for the purposes of an electronically monitored sentence. The Department recommended sentences ofcommunity work and community detention. There is no issue as to whether the address is technically suitable for home detention.District Court Decision[8] Mr Brown filed an application for a discharge without conviction. On 2 June 2017 Judge Pidwell in the District Court dismissed that application.1 She consideredMr Brown's offending to be at the medium to high level since he abused his privileges as a New Zealander in order to evade the Spanish authorities. She considered such offending affects New Zealand's international reputation. She accepted the consequences of conviction were that he would lose his job but considered that was not out of proportion to the gravity of the offending.[9] Judge Pidwell considered the Corrections pre-sentence report. She considered this was serious offending which justified a prison term, with reference to two broadly similar cases, adopted a starting point of 24 months imprisonment.2 Sheconsidered Mr Brown's status as an international fugitive from justice in Spain wasan aggravating factor which had an element of perverting the course of justice in both jurisdictions. She reduced the sentence to 18 months for his guilty plea and by another three months for his expressions of remorse, the hardship he faced in Spain, his youth and his previous good character. She considered home detention for the resulting 15 month sentence was not appropriate because it is important there be a clear message that anyone trying to evade the jurisdiction of any country must face up to the consequences of their action.[10] Mr Brown appeals.Arguments[11] Mr Reece, for Mr Brown, submits the judge failed adequately to consider andassess Mr Brown's suitability for home detention or community detention. He submits that was inconsistent with ss 7, 8, 15A and 16 of the Sentencing Act 20021 New Zealand Police v Brown [2017] NZDC 11846.2 Farley v R [2017] NZCA 97; and Burns v Police HC Wellington CRI-2005-485-125, 25 October2005.(the Act), and particularly the requirement to impose the least restrictive outcome appropriate in the circumstances under s 8(g). Mr Reece submits that the Judge failed to give adequate weight to Mr Brown's personal mitigating factors, placed excessive weight on his previous non-compliance and that the end sentence of 15months' imprisonment is excessive. He submits the sentence is not appropriate because it is not the least restrictive option.[12] Mr Reece points to new evidence, which I agree is fresh and cogent, of MrBrown's offer of employment as a Market Research Agent, commencing September 2017, which appears not to be inconsistent with any conditions of home detention. I accept I should consider that evidence.[13] Mr Clarke-Parker for the Crown submits the judge made no error. While the Judge did not expressly refer to ss 7, 8, 15A and 16 of the Act, and the decision was a quick one, her decision reflected the requirements of those sections. In any event, he submits, imprisonment is the appropriate option in terms of ss 7 and 8 of the Act. Mr Clarke-Parker submits the offending was serious, and requires an appropriate level of denouncement and deterrence which does require a sentence of imprisonment. Home detention, he says, would not be enough. Mr Clarke-Parker submits the fact Mr Hunter evaded, and continues to evade, the Spanish court process strongly supports the need for a sentence of imprisonment, in that he must not be given the opportunity to evade the consequences of his offending. The Crown acknowledges this is not a rehabilitation-focused sentence and that Mr Brown is still relatively young and has been in employment. But, it says, these factors do not outweigh the need for a sentence of imprisonment.Law[14] Under s 250 of the Criminal Procedure Act 2011 I am required to allow appeal if I am satisfied that, for any reason, there is an error in the sentence imposed; and a different sentence should be imposed. Otherwise, I must dismiss the appeal. The High Court does not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. I have regard to the purposes of sentencing in s 7 of the Act and the principles of sentencing in s 8.[15] Home detention is neither a custodial nor a community-based sentence. It is the second most restrictive sentence, after imprisonment. It should be treated as a real alternative to imprisonment.3 In deciding whether home detention is warranted, s 16 of the Act requires the judge to have regard to the desirability of keeping offenders in the community, not to impose a sentence of imprisonment unless satisfied that it is being imposed for particular sentencing purposes under s 7(1)(a) to (c) and (e) to (g), and that those purposes cannot be achieved by a sentence other than imprisonment. In addition the court must be satisfied no other sentence would be consistent with the application of the principles of sentencing in s 8. The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case.Decision[16] I have considered all of Mr Brown's, and the Crown's, submissions. I do notconsider Judge Pidwell erred in not citing the relevant sections of the Act. The requirement on judges is to make intelligible decisions. That does not always require reiteration of the numbers of sections. The meaning of each of the relevant sectionscan easily be seen in the Judge's decision.[17] Mr Reece suggests Judge Pidwell's reference to previous non-compliancewas a reference to Mr Brown's two previous convictions for dangerous driving and excess breath alcohol, which was inappropriate. But I consider it is more likely to bea reference to Mr Brown's non-compliance with his conditions of bail in Spain. In fact, since Judge Pidwell's three month discount was given for factors that includedMr Brown's good character, it could be argued that she did not take thoseconvictions into account enough. The sequence in which Judge Pidwell applied the discounts also favoured Mr Brown.[18] The offending, in lying when applying for a new New Zealand passport was serious. Mr Brown obtained a privilege for the government of New Zealand, in the form of a passport, by providing false information. The effect of doing so was to evade the processes of justice in Spain. It is an affront to the system of justice in3 R v Hill [2008] 2 NZLR 381 (CA).both countries. Mr Brown is entitled to the presumption of innocence from this court in relation to the charges he faces in Spain. But his continuing refusal to return to Spain to face those charges, or to face the consequences there of his offending in returning to New Zealand, continues his affront to both justice systems.[19] Mr Brown's youth, his employment, his remorse and the difficult circumstances he faced in Spain all weigh in his favour. Judge Pidwell took them into account in giving a discount on his sentence. But she did not consider they justified a sentence of home detention. She stated:4That is below two years so I must turn my mind to whether a home detention sentence is appropriate. In my view it is not. That is because you have not complied with the authorities before and it is important that there be a clear message of anyone trying to evade the jurisdiction of any country that they must face up to the consequences of their actions and go through the appropriate process. Those matters in Spain remain unresolved and I cannot make any assumptions either way in relation to the outcome of that but this sentence is purely focussed on your action of defying due process at that time.[20] I agree with Judge Pidwell that many of the purposes of s 7(1) of the Act are served by a sentence of imprisonment. Imprisonment, rather than home detention, would hold him accountable to the community for his offending. It may promote in him a sense of responsibility for, and acknowledgement of that harm, which his attitude to returning to Spain indicates he currently lacks. It would also serve to denounce his conduct and deter him and others from committing the same or similar offence. I consider the purposes of denunciation and deterrence in sentencing Mr Brown are capable of attracting a high weighting here.[21] I do not consider Judge Pidwell erred. I agree with the sentence she imposed. I decline the appeal. Mr Brown has been on bail pending the disposition of the appeal. He must present himself at the Waitakere Police Station, 7 Buscomb Ave, Henderson, Auckland by 12 noon, Wednesday 30 August 2017 to begin his sentence...................................................................Palmer J4 New Zealand Police v Brown, above n 1, at [18].