BIRCH v NEW ZEALAND POLICE [2017] NZHC 841

BIRCH v NEW ZEALAND POLICE [2017] NZHC 841 [1 May 2017]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYCRI-2017-412-000006CRI-2017-412-000007CRI-2017-412-000008[2017] NZHC 841BETWEEN NICHOLAS BIRCHAppellantAND NEW ZEALAND POLICEDefendantHearing: 27 April 2017Appearances: L A Andersen for AppellantM J Grills for CrownJudgment: 1 May 2017JUDGMENT OF DUNNINGHAM J[1] On 17 January 2017, the appellant was sentenced to one year and 11 months imprisonment1 on one charge of making a false statement,2 and three charges of driving while disqualified (third and subsequent).3 The appellant appeals the sentence on the basis that the Judge made an error in principle by:(a) misstating the seriousness of the charge of making a false statement;(b) imposing an end sentence that was manifestly excessive and where a lesser term of imprisonment, or a term of home detention, should have been imposed.1 Police v Birch [2017] NZDC 661.2 Crimes Act 1961, s 111.3 Land Transport Act 1998, s 32(1)(a) and (4).Background facts[2] While the appellant was in custody for various charges in 2014, he befriended another prisoner, Mr Dennis. Mr Dennis was on remand and due to be sentenced on 30 March 2015. The appellant was released on 11 March 2015. He proceeded to contact Mr Dennis' lawyer and purported to be a representative of a successful businessman, horse trainer and philanthropist. He claimed not to have met Mr Dennis but that his employer saw great potential in Mr Dennis after his release from prison. He offered to speak at Mr Dennis' sentencing.[3] The sentencing was meant to be on 30 March 2015, but the appellant failed toappear, apparently due to the need to care for a sick horse. Mr Dennis's counselrequested that the sentencing be put off until the next day. On 31 March, the appellant came to the District Court, where Mr Dennis was to be sentenced by District Court Judge Crosbie. Mr Dennis' counsel outlined to the Judge the offersmade by the appellant, which included the payment of a sum of over $25,000, in full reparation of the losses suffered by Mr Dennis' victims. The appellant was standing in Court and heard this. Judge Crosbie allowed the appellant to address the Court. The appellant reiterated the fictitious offer to the Judge. The appellant added that his employer would employ Mr Dennis on his release and pay for correspondence courses while he was in prison.[4] As a result of these false statements, the Judge gave Mr Dennis a six month discount reflecting the promise that full reparation would be paid and that he would have employment on release. Mr Dennis served his sentence and has been released from prison.[5] The driving while disqualified charges occurred between August and October 2016 where the appellant was caught on three separate occasions. In respect of the second incident, which occurred on 11 October 2016, he initially provided a false name to police. Furthermore, two of the charges of driving while disqualified were committed while the appellant was on bail.District Court decision[6] The Judge considered that the appellant's offending was entirelyreprehensible and struck at the very heart of the judicial system. He emphasised theappellant's extensive record of 93 prior convictions, much of which involved serious dishonesty offending. The Judge considered that the pre-sentence report also reflected the fact that the appellant had a tendency to misrepresent himself to improve his credibility. The Judge took into account that the offending was premeditated.[7] The Judge considered that denunciation and deterrence were the key factors in sentencing the appellant due to the nature of the offending, which involved bringing the justice system into disrepute. He considered that the offending was grave and comparatively serious in terms of ss 8(1)(a) and (b) Sentencing Act 2002. He found that most other offences related to people who lied to the police and attempted to evade the process. However, the appellant here had "the temerity tostand in front of the sentencing Judge and just shamelessly lie and lie and lie". Theresult of the deception was that an offender got a six month discount which he was not entitled to, and the victims, who expected reparation, suffered the loss of not receiving it.[8] The Judge took a starting point of 20 months to reflect the seriousness of theappellant's offending. He uplifted that by eight months for the driving offences. He considered that this reflected the totality of the offending. The Judge gave a furtheruplift of three months for the appellant's extensive history of relevant offending. The appellant received full credit for his guilty plea. That resulted in an end sentence of one year and 11 months imprisonment. The Judge then reviewed the overall sentence and concluded that it appropriately reflected the totality of the offending.[9] The appellant was not given leave to apply for home detention because of the seriousness of the offending and his long history of dishonesty offending and driving while disqualified.Principles on appeal[10] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.4[11] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentenceis "manifestly excessive" that the Court should interfere with the exercise of the Judge's discretion.[12] The focus on most appeals is thus on the end sentence. In Tutakangahau v R,5 the Court of Appeal held that:6the focus is on the sentence imposed rather than the process by which thesentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.SubmissionsThe appellant's submissions[13] The appellant's primary submission on appeal was that the starting point for the charge of making a false statement was too high when compared to the sentences imposed in other cases where charges were brought under s 111 of the Crimes Act, and when compared with the sentences imposed for the more serious crime of perjury.[14] In particular, the appellant submitted that Judge Phillips overstated the seriousness of the offence as it was only a false statement made orally to the Judge, rather than lying in Court after taking an oath. Furthermore, the statement was a promise of future action, not a misstatement of fact, which he submitted was4 Criminal Procedure Act 2011, ss 250(2) and 250(3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.6 At [36].therefore less serious. He also placed particular emphasis on the lack of relativity with the sentences imposed in Spooner v Police,7 and R v Koura,8 where sentencesof 12 months' imprisonment were imposed for similar offending.[15] The assertion that home detention should have been imposed was not pursued at the hearing.Respondent's submissions[16] The respondent submitted that the Judge's conclusion that the appellant'sactions struck at the heart of the justice system was justified on the facts. A starting point of 20 months was appropriate given the seriousness of the offending. Here the relevant facts which increased the appellant's culpability and the seriousness of the offence were that:(a) the offending was premeditated;(b) the appellant initially made the false statements to Mr Dennis' lawyer;(c) the appellant caused sentencing to be delayed for one day so he could attend and put the false statements before the Court;(d) the appellant repeated and endorsed the false statements directly to the Judge in the course of sentencing; and(e) the false statements were believed by the Court with the result that:(i) Mr Dennis received a six month reduction in his sentence of imprisonment; and(ii) the victims did not receive the expected reparation despite a combined loss of $25,000.7 Spooner v Police [2015] NZHC 2872.8 R v Koura CA16/05, 24 May 2005.[17] The respondent also emphasised that none of the cases referred to by the appellant involved a factual situation similar to, and as serious as, the present case. The respondent acknowledged that Spooner v Police was perhaps the most relevant to the current circumstances, though submitted it was less serious offending. InSpooner, the appellant, representing herself as someone else, made a statement to police alleging problems with another person B. She stated that she had been visitedby B's friend, a policeman, who told her not to make a complaint and threatened to take her children away from her. As a result of this allegation, the policeman concerned was temporarily suspended. The Court adopted a 12 month starting point for the lead offence of making a false statement.[18] The respondent then submitted that the present case was more serious thanSpooner because the false statement was made to a Judge in Court proceedings and the impact of the statement was more severe in that it resulted in an unjustified reduction of a prison sentence. In such circumstances a starting point that was just over half of the maximum penalty of three years was warranted. This was reinforced by the fact that the Court of Appeal has made it clear that any attempt to disturb the process of the administration of justice is to be deplored and must usually be met by a moderately lengthy term of imprisonment.9 Denunciation and deterrence are the primary sentencing principles in cases of this type.AnalysisSeriousness of the false statement[19] There is no tariff decision for the offence of making a false statement. The maximum penalty for the offence is three years imprisonment.10[20] In my view, it is difficult to find analogous cases, and so the Judge was correct to consider the seriousness of the appellant's particular offending in light of the maximum penalty available.9 R v Churchward CA 349/05, 2 March 2006 at [14].10 Crimes Act 1961, s 111.[21] While the respondent places much emphasis on the decision in Spooner, I am reluctant to draw comparisons, given the real risk that the assessment of Ms Spooner's culpability may have been coloured by mental health issues whicharose in that case. I see the case of Koura as more directly relevant in that it involved making a false statement, in an informal tribunal setting, where there had been a promise made to tell the truth. The present circumstance is analogous, but more serious. In this case, the statements made to the lawyer deferred the sentencing process. They were then made in the formality of a criminal sentencing process and had direct consequences for the outcome of the sentencing process. For these reasons, I consider a higher starting point than the 12 months adopted in Koura was legitimate.[22] Furthermore, given the moderately serious nature of the offending, and the fact the maximum sentence was three years, a starting point of around half the maximum sentence, or 18 months could be justified. In this case the starting point was 20 months, which was on the high side of what I consider an appropriate sentence, but I cannot say it was out of range. That said, I must still look at the totality of the sentence to see whether it was manifestly excessive.Uplift for driving while disqualified charges[23] The appellant has two previous convictions for driving while disqualified. On this occasion he was sentenced for three further incidents. Two of the charges for driving while disqualified were committed by the appellant while on bail. On one of the occasions, the appellant gave a false name and lied about holding a licence. These are aggravating factors.[24] As the respondent notes, the Judge clearly stated that he considered that the uplift was justified when looking at the totality of the offending. The Judge again considered totality when he reached his final sentence of one year and 11 months.[25] Repeated offences of driving while disqualified are treated very seriously by the Courts. In Opetaia v Police, the appellant was sentenced on four charges ofdriving while disqualified.11 Her offending was aggravated by the fact she had four previous convictions for driving while disqualified and driving while suspended. She was also on bail during at least one of the offences. The Judge took a combined starting point of 19 months imprisonment for this offending,12which onappeal was held to be "stern" but not outside the sentencing judge's discretion.[26] The offending in Opetaia was similar to the present offending, although it was more serious. Nevertheless having regard to it, and the cases discussed in it, I am satisfied that an uplift of eight months on these three charges, to an overall starting point of 20 months imprisonment, was within range.Conclusion[27] The appellant has not demonstrated that the end sentence was manifestly excessive. While the starting point on the charge of making a false statement was high, it was within a range that can be accepted on standard sentencing principles. The uplift for the three incidents of driving while disqualified was well within range, as was the uplift for his extensive history of dishonesty offending.[28] I am satisfied that the overall sentence, in totality, reflected the seriousness of the offending and the key sentencing principles at play.[29] Accordingly, the appeal is dismissed.Solicitors:L A Andersen, Barrister, DunedinRPB Law, Dunedin11 Opetaia v Police [2015] NZHC 2532.12 Made up of 10 months for the first driving while disqualified offence and adding uplifts of three months for each of the other three charges.