HUGHES v NEW ZEALAND POLICE [2018] NZHC 1807

HUGHES v NEW ZEALAND POLICE [2018] NZHC 1807 [19 July 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-000035[2018] NZHC 1807BETWEEN SHANE EDWARD HUGHESAppellantAND NEW ZEALAND POLICERespondentHearing: 19 July 2018Appearances: K L Chalmers for AppellantS Bicknell Young for RespondentJudgment: 19 July 2018ORAL JUDGMENT OF VENNING JSolicitors/counsel: K L Chalmers, ChristchurchCrown Solicitor, Christchurch[1] Shane Hughes pleaded guilty to charges of driving whilst disqualified (third orsubsequent), driving with excess breath alcohol (third or subsequent), recklessoperation of a motor vehicle, resisting a constable, and possession of offensiveweapons.[2] On 21 March 2018 Judge A A Couch sentenced Mr Hughes to imprisonmentfor one year and 10 months and imposed standard and special release conditionstogether with disqualification.1[3] Mr Hughes appeals against sentence. The grounds of appeal are:(a) the Judge erred by declining Mr Hughes' application for anadjournment, thus preventing him from pursuing alternative addressesfor a home detention sentence; and(b) that the sentence was manifestly excessive, in particular the sentencesimposed for the charges of possession of offensive weapon and excessbreath alcohol charges.[4] Mr Hughes seeks orders quashing the sentence and remitting it back to theDistrict Court and in the alternative, but not preferred, an order quashing sentence andsubstituting a different lesser sentence.[5] At the outset of the hearing of this appeal this morning Ms Chalmers sought anadjournment. She advanced two reasons in particular for the adjournment:(a) first, she wanted time to respond to the Crown submissions insofar asthey rely on a passage in the pre-sentence report; and(b) second, she only received the Crown submissions in the evening ofTuesday and had only had one clear day to consider them.1 New Zealand Police v Hughes [2018] NZDC 8444.[6] I declined the application for adjournment. I indicated that I was prepared notto take account of the particular passage in the pre-sentence report and indicated thatin my view one day to prepare a response to the Crown submissions in reply on asentence appeal was sufficient. However I stood the matter down from the list in themorning to 3.45 pm for the appeal to give counsel further time.[7] The relevant offending is described by the Judge in his sentencing notes asinvolving two incidents.[8] In the afternoon of 15 October 2016 Mr Hughes was driving a car on StateHighway 2 near Waipukurau. At the time he was disqualified from driving. That ledto the charge of driving whilst disqualified (third or subsequent).[9] Seven months later, on 20 May 2017, Mr Hughes was again driving in theWaipukurau area. He failed to stop at a police cordon which had been set up to stophim. He drove off at a speed estimated of up to 100 kilometres an hour in a 50kilometre per hour residential zone. He hit a traffic island at an intersection andskidded some 48 metres across the intersection before his car came to rest in aresidential property. Mr Hughes then ran off but was subsequently caught by thepolice. When the police tried to arrest him he resisted and also made threats to theofficer involved. A search of the car located a stun gun or taser, a CO² powered airpistol and also two knives. Mr Hughes was tested for alcohol and was found to havea breath alcohol level of 954 micrograms per litre of breath.[10] As the Judge noted all of that occurred against the background of an extensivecriminal history of more than 50 convictions, principally for offences of dishonestyand offending under the Misuse of Drug Act 1975, although as the Judge noted therewere two previous convictions for alcohol related driving in 2001, 2004 and two fordriving while disqualified, both in 2016.[11] The Judge took the possession of offensive weapons as the lead charge,considering that a starting point of 12 months' imprisonment was required. He thenuplifted that by 12 months for the excess breath alcohol and reckless driving charges,and a further eight months for the driving whilst disqualified. He then uplifted thatadjusted starting point by two months for Mr Hughes' previous criminal history. TheJudge then gave a discount of eight months for the guilty plea and a further fourmonths to reflect totality. That led to the end sentence of one year, 10 months'imprisonment. The Judge considered home detention would be an appropriatealternative but there was no appropriate address available. The Judge did reserve leaveto apply for substitution of sentence.[12] Ms Chalmers referred to the background which led to the sentencing exercisebefore Judge Couch. As noted the offending occurred in Waipukurau. Mr Hughes hadentered guilty pleas to all charges, except resisting police, on 28 July 2017 in theWaipukurau District Court with assigned counsel Mr Hewatt. On 15 January 2018 MrHewatt appeared in the Waipukurau District Court and requested all matters betransferred to the Christchurch District Court for sentence. On 16 January Mr Hughesappeared in the Christchurch District Court where he entered a guilty plea to theremaining charge of resisting police and a sentence date for all charges was given.Pre-sentence reports with appendices were ordered.[13] On 19 March 2018 Mr Hughes was assigned to Mr Maze on unrelated matters.On 20 March Mr Hughes appeared before Judge Couch. Mr Tupaea appeared asassigned counsel. That was on an additional and fresh charge of driving whilstdisqualified. Mr Tupaea was unaware there were other matters but the Judge drewthose to his attention. A review of the file disclosed that three different counsel hadbeen assigned to Mr Hughes. The Judge decided to consolidate matters and directedthe matter be adjourned to the following day for one counsel to be assigned to allmatters and for the sentencing to proceed that day. The Judge effectively brought thesentencing forward.[14] Mr Maze and Ms Chalmers as his employee took over the file for thesentencing. Ms Chalmers notes she was only able to speak to Mr Hughes at 9.30 inthe morning before Court at 10.00 am. She was provided with a pre-sentence reportwhich stated the home detention address which had been assessed was not suitable asthe landlady had withdrawn consent. Ms Chalmers sought an adjournment which theJudge declined.[15] As noted the first ground of appeal is that the Judge erred in law when herefused to grant the adjournment to allow Mr Hughes to provide a suitable andalternative home detention address. Ms Chalmers submits that the failure to grant theadjournment meant that there was an error in the sentence imposed.[16] Further, while acknowledging the Judge had a discretion she submitted that thediscretion was not exercised by the Judge in accordance with law and principle andthe Judge effectively approached the matter with a closed mind and was determinedto have the sentencing exercise carried out the next day.[17] The second ground of appeal is as to the substance of the sentence. It issubmitted that the sentence imposed was manifestly excessive and was not justifiedby relevant sentencing principles.[18] As the history of the case discloses the original offending for which Mr Hugheswas sentenced on 21 March took place in 2016 and 2017. Guilty pleas had initiallybeen entered to most of the charges with the exception of the resisting police on 28July 2017. A pre-sentence report was available for the sentencing. The Judgeadjourned the matter for one day to clarify the issue of counsel and to ensure that thesentencing proceeded the next day.[19] Ms Chalmers referred to two Court of Appeal decisions where the Court upheldthe Judge's decisions declining applications for adjournment where the sentencingJudge was of the view that home detention was not an appropriate outcome in supportof her submission that the Judge should have adjourned the sentencing.2 The cases arenot directly relevant because of course in the present case, as the Judge accepted, homedetention would have been an appropriate outcome if a suitable address was available.The problem for Mr Hughes was that he did not have a suitable available address. Theaddress that had possibly been available had been withdrawn as the landlady hadwithdrawn her approval given Mr Hughes had been arrested on the fresh charge.[20] In the circumstances s 80I of the Sentencing Act 2002 applied. The Judgecomplied with it. He had sentenced Mr Hughes to a short term of imprisonment. At2 Paora v R [2011] NZCA 472; and Daw v R [2011] NZCA 581.the time of sentencing the Judge would have sentenced the offender to a sentence ofhome detention if a suitable address had been available. The Judge was required tomake an order granting Mr Hughes leave to apply for cancellation of the sentence andsubstitution of the sentence of home detention if a suitable address was found at a laterdate. Although in shorthand form, that is the effect of the Judge's order in grantingleave to apply for substitution of the sentence.[21] In the circumstances, particularly given the lengthy background to this matterfrom when the initial offending had taken place, and when the guilty pleas wereentered, and that the Judge had all relevant information in front of him on the day forsentencing and had adjourned the matter for a day to enable counsel to prepare forsentencing I am satisfied that the Judge was entitled to decline the application for afurther adjournment of the sentencing and to proceed with the sentencing on 21 March.There was no error of principle in the Judge's decision to proceed.[22] As Toogood J observed in the case of Larkin v Ministry of SocialDevelopment:3The section [80I] gives no guidance about when it should be used instead ofadjourning the hearing and there does not appear to have been any judicialanalysis of where the use of s 80I is appropriate in place of an adjournment.In Police v Tiatia, adjournment or the granting of leave under s 80I weredescribed as alternatives. Each approach appears to have been used frequently,and interchangeably, although consideration of the cases suggests thatadjournment is typically used where a report regarding home detention hasnot been provided, or a suggested address has not been assessed, rather thanin cases where it is clear that no suitable address is currently available.In the present case the relevant report was before the Judge and there was no suitableaddress currently available and communicated to the Judge.[23] I note that during the course of submissions Ms Chalmers indicated to theCourt that Mr Hughes now has an alternative address that may be suitable but haschosen not to make an application for leave to substitute the sentence, preferringinstead to pursue this appeal. That is a matter for Mr Hughes and his advisers, but it3 Larkin v Ministry of Social Development [2015] NZHC 680 at [29] (footnote omitted).does not affect the validity of the decision of the Judge to adjourn the matter when itwas before him in light of the information before the Judge at that time.[24] There was no error in the way the Judge dealt with the matter of theadjournment. If there is an available address, the short and appropriate remedy is forMr Hughes to apply to seek leave to substitute the sentence.[25] On the second point counsel submitted that the Judge fell into error byoverstating the starting point in relation to the possession of offensive weapons, theEBA and reckless driving charges. Ms Chalmers made the point, which I accept, thatthere is only one charge for possession of an offensive weapon, albeit that fourweapons were referred to, the air pistol, the taser or stun gun, and the two knives. Shesubmitted that the fishing knife and air pistol were not offensive weapons. MsChalmers referred to a number of decisions where the Court had taken starting pointsfor possession of offensive weapons, particularly the cases of Police v Bevins; Graftonv Police; and Naiker v R and submitted that the offending in the present case wassubstantially less serious than those cases.4[26] In response the Crown submit that it was open to the Judge to take the startingpoint of 12 months' imprisonment for the possession of weapons, noting that inaddition to the cases referred to by Ms Chalmers in Rattigan v Police this Court hadupheld a starting point of 10 months' imprisonment for three charges of possession ofan offensive weapon.5 That case involved a large knife and two unloaded air pistols.[27] Bearing in mind the maximum penalty for the offending and the circumstancesin which the weapons were found to have been in Mr Hughes' possession I do notaccept the submission the starting point of 12 months is manifestly excessive. MsChalmers submitted the Judge should not have taken into account the suggestion inthe summary of facts that Mr Hughes was intending to use the weapons to threaten orharm members of a gang which had been apparently been harassing him. Thesummary stated that at about 10.00 pm on Saturday 20 May 2017 police had received4 Police v Bevins DC Palmerston North CRI-2009-085-7475, 12 May 2010; Grafton v Police HighCourt Christchurch CRI-2009-409-56, CRI-2009-409-57, 25 June 2009; and Naiker v R [2014]NZCA 20.5 Rattigan v Police [2013] NZHC 1113.information that the defendant Hughes was driving to Waipawa to seek retributionagainst a gang member. The police were told that Hughes was in possession of an airpistol. At about 10.25 pm the defendant drove his Subaru motor vehicle east on LeetonDrive and ignored the attempts of an officer to stop him, and the reckless drivingoffending then occurred. When the summary is read in context it makes it clear thatthe information the police had received was consistent with the inference the Judgedrew from it, namely that the defendant was in possession of weapons and was drivingto seek retribution against a gang member. The summary was entirely consistent withthe information the police had that he was in possession of an air pistol for thatpurpose.[28] The fact that Mr Hughes failed to stop at the police cordon or to stop for thepolice when they were specifically trying to stop him because of the information andthen, when his car was searched, he was found to be in possession of an air pistol andother weapons was confirmation the information the police had received was correct.It does in my view aggravate the seriousness of the offending. I consider it was opento the Judge to take a sentence of between 10 and 12 months for the one charge ofpossession of offensive weapons.[29] Next, Ms Chalmers criticised the uplift for the excess breath alcohol chargeand the reckless driving charges as excessive, although during the course ofsubmissions she accepted that perhaps she had overlooked that the Judge's uplift of 12months was in relation to both of those charges. Ms Chalmers did not challenge theeight months' sentence for driving whilst disqualified nor the other two month uplift.She submitted that an end sentence of somewhere in the region of 14 months beforemitigating factors might have been appropriate for the totality of the offending.[30] With respect I consider that submission to be unrealistic. The reckless drivingand excess breath alcohol charges combined readily justified the 12 months uplift thatthe Judge imposed. In fact it could have been more. The driving was very serious andexposed other members of the public to serious injury and possibly death. The breathalcohol reading was significantly high.[31] It follows that I accept the Judge was quite entitled to reach the aggregatedstarting point of 34 months. The Judge then effectively applied a 22 per cent discountfor the guilty pleas and then a further four months reduction for totality. While mostof the pleas were entered relatively early (with the exception of resisting police charge)as the Supreme Court observed in Hessell v R the Court is also entitled to take accountof the strength of the police case, in fact is required to take account of the strength ofthe police case.6 The police case against Mr Hughes was overwhelming in relation tothe reckless driving, possession and excess breath alcohol charges. In thecircumstances the discount of 22 per cent could be regarded as generous.[32] The end sentence of one year, 10 months was well within range. The appeal isdismissed.__________________________Venning J6 Hessell v R [2011] 1 NZLR 607.