KELLY v NEW ZEALAND POLICE [2020] NZHC 972

KELLY v NEW ZEALAND POLICE [2020] NZHC 972 [12 May 2020]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2020-412-000009[2020] NZHC 972BETWEEN SCOTT JAMES WREFORD KELLYAppellantAND NEW ZEALAND POLICERespondentCRI-2020-412-000010BETWEEN SCOTT JAMES WREFORD KELLYAppellantAND NEW ZEALAND POLICERespondentHearing: 12 May 2020Appearances: S A Saunderson-Warner for AppellantR P Bates for RespondentJudgment: 12 May 2020ORAL JUDGMENT OF GENDALL JIntroduction[1] This is an appeal against sentence. On 17 April 2020 Judge Crosbie in theDistrict Court at Dunedin sentenced the appellant Scott Kelly to 16 months'imprisonment on a lead charge of wilfully attempting to defeat the course justice. Hewas also for sentence on a charge of transmitting radio waves without a licence orexemption and a charge of using interfering equipment that had been declared to beprohibited equipment. Finally, he was disqualified for a period of two years on chargesof dangerous driving and driving while suspended. Mr Kelly appeals his sentences ofimprisonment and disqualification on the basis they are manifestly excessive.Facts[2] Turning now to the facts in this matter, on 29 October 2019 Mr Kelly wassuspended from driving for a period of three months for excess demerit points. Whenasked by police if he understood the suspension, he told police, "I will continue todrive but I won't be stopping for police for three months".[3] In the evening of 10 December 2019, a police constable was on duty as a policedog handler in the Otago Coastal Area. During the evening, Mr Kelly made variousunauthorised radio transmissions on the police radio channel using a personal radiotransmitter. The Constable recognised Mr Kelly's voice due to past dealings withhim. Mr Kelly deliberately jammed the police radio by continuing to comment oncurrent police operational matters, hindering police in their communications. Hecontinued to make personal comments on the radio directed at the particular constableover the course of the night, including "Fuck those Deltas" (referencing the policeradio code for dog units), "Getting close to your house" and stating the Constable'shome address.[4] At about 10.20 p.m. the Constable returned home and heard a vehicle speedpast his house. He got into his patrol car to locate the vehicle. A short time later theConstable was dealing with a driver of a vehicle he had stopped on an unrelated matter,when the defendant made further comments on the police radio: "come and get me","those are my brake lights flashing", "come and get me" and "Pop pop Nigga".[5] The Constable then continued patrolling along Factory Road in Mosgiel. Heobserved Mr Kelly driving his vehicle towards him on the wrong side of the road, withno headlights on and travelling at approximately 90–100 km/h. The Constable wasforced to take evasive action to avoid being crashed into. Mr Kelly swerved at the lastminute to avoid impact.[6] The Constable turned his vehicle around to follow Mr Kelly's vehicle northand activated his blue and red flashing lights and siren. Mr Kelly did not stop whensignalled to by the Constable. A pursuit was initiated. The Constable observedMr Kelly's dangerous manner of driving including his increased speed and swervingonto the wrong side of the road. He abandoned the pursuit, noting Mr Kelly's speedto be approximately 200 km/h as he fled down Factory Road. This failing to stopformed the basis of the charge of wilfully attempting to defeat the course of justice.[7] Moments later, Mr Kelly made further comments on the police radio of "Younot want to chase me cunt" and "I drove past your house cunt".[8] I interpolate here one further matter. Earlier, on 20 September 2019, theappellant was spoken to by the police constable on an unrelated matter when he wasdriving the same Audi motor vehicle he was in during the evening of 10 December2019. At that time, he advised the Constable that he knew of both his Facebook andInstagram accounts and quoted both of the account names to the officer. He alsoadvised the Constable that he could get his address as well through the police databaseor the Electoral Roll and he said that he would not stop for police the next time.District Court decisionSentence indication[9] Turning now to matters in the District Court, the first relates to a sentenceindication. On 4 March 2020 Judge Crosbie gave a sentence indication requested atthat time by the appellant.1 He took the view that Mr Kelly's knowledge and use ofthe radio transmissions were relevant to the charge of wilfully attempting to defeat thecourse of justice. He observed the broad range of factual circumstances that fell withina charge of perverting or defeating justice. He considered Mr Kelly's conduct to fallsomewhere in the middle of: interfering with and threatening witnesses at the upperend, and drivers giving false details to police to avoid enforcement action at the lowerend. This view was guided by his appreciation of Mr Kelly's "quite sophisticatedattempt to take yourself out of the criminal justice system, or at least portray that youare better than it" citing the use of the transmitting device and the goading of theConstable.1 R v Kelly DC Dunedin CRI-2019-012-2524, 4 March 2020.[10] His Honour noted the cases cited by the Crown were all quite different to thepresent offending.2 He considered of those, Stevens v Police was the most analogous.There, a driver who was pulled over and tested gave police a false identity.Judge Crosbie said, "Yours is – well, not a little bit more; quite a lot more serious. Itwas orchestrated, premeditated and sophisticated."3[11] The Judge noted the Crown sought a starting point of only 10 months,describing it as "low for the Crown". He indicated a starting point would be more"more in the nature of 15 to 18 months".4 He then indicated there would be a combineduplift of three months to the starting point for the driving charges, bringing the finalstarting point to between 18 and 21 months.[12] He said there would have to be an uplift of three months for Mr Kelly's"significant" previous convictions, and three months for breach of release conditions.This brought the adjusted sentence to between 24 and 27 months. Taking into accounta discount for guilty pleas, his Honour said the end sentence would be between15 months and two years. That would mean a guilty plea discount of between 11.1and 37.5 per cent.Sentence decision[13] I turn now to the sentence decision in the District Court. On 17 April 2020Judge Crosbie delivered his final sentence decision.5 He did not revisit or discuss astarting point in relation to the lead charge of attempting to defeat the course of justice.He dedicated much of his sentencing remarks to considering Mr Kelly's history ofchildhood issues and abuse in residential care, causing him to suffer from trust andauthority issues, as well as PTSD and other mental health issues. The Judge believedMr Kelly to understand his mental health and psychological issues and to bedetermined to do something about them.2 R v Jones [2018] NZHC 984; Kelly v Police [2014] NZHC 3168; and Stevens v Police [2012]NZHC 871.3 Kelly, above n 1, at [18].4 At [19].5 R v Kelly [2020] NZDC 6513.[14] His Honour noted that, what he had said as an indication of up to two yearswas more than either the appellant's counsel or the Crown had submitted. Taking theattempt to defeat the course of justice offence as the lead charge, the Judge imposed asentence of 16 months' imprisonment. He thus appeared to take a slightly moremerciful view of the offending and Mr Kelly's personal circumstances. He was alsosentenced to two months' imprisonment for the driving charges, to be servedconcurrently. Finally, the Judge disqualified him from driving for a period of twoyears and six months.Principles on appeal[15] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.6 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, "[an appellate] court 'will not intervene where the sentenceis within the range that can properly be justified by accepted sentencing principles'".7It is only appropriate for this Court to intervene and substitute its own views if thesentence being appealed is "manifestly excessive" and not justified by the relevantsentencing principles.8 The focus of an appellate court must "primarily be on theappropriateness of the end sentence, not the means by which that end sentence hasbeen reached".9SubmissionsAppellant's submissions[16] Turning now to the appellant's submissions, Ms Saunderson-Warner'ssubmissions initially were filed without having the benefit of seeing Judge Crosbie'ssentence indication notes. Not being Mr Kelly's counsel at first instance, she only had6 Criminal Procedure Act 2011, ss 250(2) and 250(3).7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].8 Ripia v R [2011] NZCA 101 at [15].9 Skipper v R [2011] NZCA 250 at [28].the "two years" sentence indication as recalled in the Judge's final sentence decisionand the final sentence of 16 months actually imposed by the Judge.10[17] Before me counsel noted the lack of case law relevant to the present case whichis a factually unique case of defeating justice. However, she says Stevens providessome assistance.11 The offender there was stopped for a roadside breath test and gaveher cousin's details instead of her own. She was subsequently summonsed andrepeated this false identity in a sworn affidavit in support of a plea of special reasonsnot to disqualify. A conviction was entered against her cousin before the deceptionwas appreciated. While Heath J noted the offending was less serious than witnessintimidation, he said:12any conduct that is designed to release the offender from criminalresponsibility by endeavouring to secure a conviction against another isinsidious. Like the cases involving suborning of witnesses, such conductstrikes at the heart of the criminal justice system.Heath J found the sentence was not manifestly excessive and made no adversecomment as to the 12-month starting point adopted by the District Court Judge.[18] Ms Saunderson-Warner also cites Taylor v Police, a case where the offendergave a false name and address (relating to an actual person) when stopped by policeand after producing an evidential breath test of 838 micrograms of alcohol per litre ofbreath.13 Conviction and sentence were entered against the name of that innocentperson before the deception was discovered. In that case, the offender was the subjectof a 12-month starting point.[19] Counsel submits the present offending is less serious than the two cited cases.She suggests those cases owe their greater seriousness to their propensity to strikemore directly at the criminal justice system, and the fact they were more prolongedand significantly impacted innocent victims.10 Kelly, above n 5, at [32]–[33].11 Stevens, above n 2.12 At [25].13 Taylor v Police [2014] NZHC 2285.[20] She then cites a case more serious again, R v Jones, an authority cited by theCrown at first instance.14 In that case, a witness to a car crash causing four fatalitiesedited a video of the crash and destroyed the original recording. A starting point of18 months was adopted and endorsed on appeal there. Ms Saunderson-Warnersubmits the present case is fundamentally an "avoiding apprehension" case and is lessserious than false identity cases because it did not involve the court process, was notsustained and did not victimise anyone else. She submits a starting point of no morethan nine months was appropriate here.[21] Counsel submits Mr Kelly should have received a further discount of 15 percent for his personal mitigating circumstances including deprivation and negativemental health effects suffered as a result of abuse and neglect in state care.[22] As to the period of disqualification from driving, Ms Saunderson-Warner saystwo years was too long. She submits, because this was a bad case of dangerousdriving, a starting point of only nine months was warranted. To reflect the additionaldriving while suspended charge, an uplift of three months could be made. If Mr Kellyhad been charged with failing to stop, there would have been a mandatory cumulativedisqualification of six months, such that a stern approach would be 18 months'disqualification.Respondent's submissions[23] Mr Bates for the Crown says in response, a starting point of between 15 monthsand 18 months cannot be described as excessive, though arguing at first instance10 months was an appropriate starting point. Mr Bates cites a number of cases thatdeal with interference with witnesses.15 He accepted that the cases were of a differentnature than the present offending, but said "the general principle is that any attempt topervert the course of justice is likely to be met by a term of imprisonment."[24] Given the dangerous nature of Mr Kelly's driving and the fact he had explicitlytold police at the time of his suspension that he would not stop for police, a significant14 Jones, above n 2.15 Miller v R [2014] NZCA 382; Ledgerwood v R [2017] NZHC 822; and Maney v R [2018] NZCA193.period of disqualification was appropriate. He concluded that given the appellant'shistory and his offending in this case, the end sentence arrived at in the District Courtof 16 months' imprisonment cannot be considered in error or manifestly excessive.AnalysisAttempting to defeat the course of justice[25] Turning to my analysis in this matter, and looking first at the attempting todefeat the course of justice charge, at the outset I need to say that in my view, the Judgeerred in considering the appellant's knowledge and use of the radio transmissions tobe relevant to the defeating justice charge. As to the elements of the offence,16 theactus reus consists of some act (not normally a mere omission)17 taken by the offenderthat seeks to avoid criminal liability.18 The charging document here specifically reads"WILFULLY ATTEMPTED TO DEFEAT THE COURSE OF JUSTICE BYFAILING TO STOP WHEN SIGNALLED BY POLICE WHILE DRIVINGSUSPENDED". The Police Summary of Facts on which the appellant pleaded guiltydefines his attempt to defeat justice as him failing to stop when required by the policeconstable. The comments subsequently made by the appellant over the radio weremerely designed to goad the Constable and did not in any material way, as I see it, addto his attempt to defeat justice by failing to stop when required. The radiotransmissions were not relevant to the offence. Additionally, in sentencing an offender,a sentencing court must take into account those facts express or implied that areessential to a plea of guilty, and may take into account facts agreed on by theprosecutor and the offender (emphasis added).19[26] A starting point of between 18 and 21 months for the lead offence of attemptingto defeat the course of justice, in my view, was excessive. A sentencing court musttake into account the seriousness of the type of offence charged in comparison withother offences, as indicated by the maximum penalties for the offences.20 However,16 Crimes Act 1961, s 117(e).17 R v Clark HC Hamilton CRI-2006-019-4626, 24 August 2006.18 See Simon France (ed) Adams on Criminal Law – Offences and Defences (online ed, ThomsonReuters) [CA117.05(3) and (2)]; The Queen v Kane [1967] NZLR 60 (CA); and The Queen vRamsay [1965] NZLR 1084 (SC).19 Sentencing Act 2002, s 24(1).20 Sentencing Act, s 8(b).the offending here fits more naturally within a charge of failing to stop (with amaximum penalty of only three months' imprisonment for a third offence)21 thanattempting to defeat the course of justice (with a maximum penalty of seven years'imprisonment). Thus, the inquiry should be more intensely focused on the gravity ofthe actual offending in this case. There should not be excessive weight placed on themaximum penalty available for charges which may have been chosen but might beseen possibly as inappropriate in all the circumstances.[27] Generally, counsel are correct to note the lack of comparable case law here.The Crimes Act offence of "wilfully attempt[ing]to obstruct, prevent, pervert, ordefeat the course of justice" captures a very broad range of offending. AsJudge Crosbie noted, at the upper end there is forceful or threatening interference withwitnesses outside court in the course of criminal proceedings. At the lower end, thereare drivers who give a wrong name when stopped by police for enforcement purposes.[28] However, unlike the view taken in this case by the Judge, I consider the presentoffending to be less serious than that seen in Stevens and Taylor, discussed above. InStevens, the fact a conviction and sentence was entered against the name of an innocentperson, after the matter had proceeded through the courts and after the offender hadsworn a false affidavit supporting her plea for special reasons not to disqualify, theoffending was considerably more undermining of the administration of justice thanhere. As Heath J said in Stevens, such cases strike at the heart of the criminal justicesystem.22 However, that offending only attracted a starting point of 12 months.Similarly, in Taylor, the offending involved the giving of a false name which meantconviction and sentence was entered against an innocent person's name after thecriminal proceeding had made its way through the court process.[29] In R v Spratt the Court of Appeal found that a six-month sentence wasappropriate for offending consisting of the offender taking one of two vials of bloodof his taken in an evidential blood testing procedure and flushing it down the toilet atthe police station. The remaining vial was still available to be used as evidence. The21 Land Transport Act 1998, s 52A(5)(b).22 Stevens, above n 2, at [25].Court of Appeal found while a sentence of imprisonment was called for in principle,a term of six months' imprisonment was a sufficient punishment.23[30] The offending in the present case, as I see it, strikes less at the heart of theadministration of justice (and interferes with the administration of the course of justiceless), and is more a case of ignoring court orders and avoiding apprehension by police.A starting point of something less than 12 months would be appropriate. Given thereis an appreciable difference in the seriousness of the offending here than in the casesof Stevens and Taylor, and there is slightly more seriousness here (in terms of statedpremeditated plan to not stop for police) than in Spratt, a starting point of nine monthsis appropriate in this case. I note this is the starting point urged upon Judge Crosbieat first instance by the appellant's then-counsel and is only one month less than thatsuggested by the Crown before the Judge.Other charges[31] Turning now to the other charges, the three-month uplift for the dangerousdriving and driving while suspended charges was appropriate. The three-month upliftfor the breach of release conditions was also available to the Judge and, in my view,is appropriate. That indicates a global starting point of 15 months.Personal circumstances and guilty plea[32] Turning now to the appellant's personal circumstances and guilty plea, thethree-month uplift for Mr Kelly's previous convictions is appropriate, given a fullanalysis of his conviction history which includes:(a) perverting the course of justice;(b) careless driving causing death or injury;(c) four charges of dangerous driving;(d) two charges of reckless driving;23 R v Spratt [2007] 3 NZLR 810 (CA) at [32].(e) careless driving;(f) failing to stop and ascertain injury following an accident;(g) failing to stop when signalled by police flashing lights and siren;(h) failing to give information demanded on being stopped as a driver bypolice; and(i) two charges of driving while disqualified.That would bring a nominal sentence to 18 months.[33] A two-month discount to take account of Mr Kelly's PTSD and his mentalhealth issues suffered as a result of his time in state residential care as a child isappropriate here.[34] Finally, a 25 per cent discount of four months for Mr Kelly's guilty pleas wouldbring the end sentence to one of 12 months. The end sentence imposed in the DistrictCourt was one of 16 months' imprisonment. That four-month discrepancy is enoughfor this Court to find the end sentence as manifestly excessive here. That sentence,therefore, is set aside and I impose a sentence of 12 months' imprisonment.Disqualification period[35] Looking at the disqualification period, turning now to the charges of dangerousdriving, this was a bad case which involved excessive speed, driving on the wrongside of the road and towards a police patrol car and only swerving to avoid collisionat the last minute. A starting point of 12 months would be appropriate in light of thegravity of the offending. An uplift of six months to reflect the driving while suspendedcharge, given it is his third offence is appropriate.24 His stated predetermined plan toavoid apprehension for driving while suspended,25 is also relevant here. The minimumperiod of disqualification for a third driving while disqualified offence (as is the case24 Land Transport Act, s 32(4)(b).25 See above at [2].here) is one year, so that would be cleared here.26 However, it would be inappropriateto take into account the failing to stop matter here, as that is already the subject of apenalty under the defeating the course of justice charge.27 Thus, the two-yeardisqualification period, in my view, was excessive. A period of 18 months'disqualification should be substituted instead.Conclusion[36] In conclusion, I find that this appeal must be allowed. The appellant'ssentences of imprisonment and disqualification are set aside. In their place sentencesof 12 months' imprisonment and 18 months' disqualification from driving areimposed.[37] The special conditions at [34] of Judge Crosbie's Sentencing Notes of 17 April2020, the concurrent sentence of two months' imprisonment on the driving charges,and the conviction and discharge on the radio communication matters (for the reasonsthe Judge notes at [36]) are to remain....................................................Gendall JSolicitors:RPB Law, DunedinCopy to:Sarah Saunderson-Warner, Barrister, Dunedin26 Land Transport Act, s 32(4)(b).27 See New Zealand Bill of Rights Act 1990, s 26(2).