BETWEEN BRODIE JAMES GORDON ROSS Appellant AND NEW ZEALAND POLICE Respondent
[2024] NZHC 1301
•23 May 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-099
[2024] NZHC 1301
BETWEEN BRODIE JAMES GORDON ROSS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 May 2024 Appearances:
K T White and H R Skelton for Appellant W J S Mohammed for Respondent
Judgment:
23 May 2024
JUDGMENT OF GRAU J
[Sentence appeal]
[1] On 12 April 2024, Mr Ross was sentenced to 16 months and two weeks’ imprisonment. He appeals that sentence on two grounds: the Judge should not have imposed an uplift for his previous criminal history and the Judge should have reduced the sentence to take into account its effect on Mr Ross’ children.
[2] The respondent submits that the end sentence was in range. The starting points were correct. Although the uplift for previous convictions might be regarded as stern, the Judge did not impose any uplift for offending while on bail, and a lesser discount for guilty pleas could have applied. No reduction was warranted to reflect the impact of Mr Ross’ imprisonment on his children.
The offending
[3] Mr Ross was sentenced on the following charges, relating to two different sets of offending:
ROSS v NEW ZEALAND POLICE [2024] NZHC 1301 [23 May 2024]
(a)On 7 August 2023:
(i)dangerous driving;1 and
(ii)operating a motor vehicle causing sustained loss of traction;2
(b)On 14 December 2023, while on bail and pending sentence on the August charges:
(i)breach of protection order;3
(ii)behave threateningly;4
(iii)unlawful possession of a firearm;5
(iv)unlawful possession of ammunition.6
[4] The August 2023 driving offending involved Mr Ross accelerating heavily, making his vehicle lose traction while he made a U-turn, and driving on the wrong side of the road at speed through a supermarket carpark, narrowly missing pedestrians. He crashed into a power pole before leaving his vehicle on a driveway and departing on foot.7
[5] Mr Ross was on bail pending sentencing in relation to the driving matters, but he did not appear in Court for his sentencing on 16 November 2023.8
1 Land Transport Act 1998, s 35(1)(b) (maximum penalty of three months’ imprisonment or $4,500 fine, driver must be disqualified for six months or more).
2 Land Transport Act, s 36A(1)(c) (maximum penalty of three months’ imprisonment or $4,500 fine, driver must be disqualified for six months or more).
3 Family Violence Act 2018, ss 98(1)(a) and 112(1)(b) (maximum penalty of three years’ imprisonment).
4 Summary Offences Act 1981, s 21(1)(a) (maximum penalty of three months’ imprisonment or a
$2,000 fine).
5 Arms Act, s 45(1) (maximum penalty of four years’ imprisonment or $5,000 fine or both).
6 Arms Act 1983, s 22B (maximum penalty of $10,000 fine).
7 Police v Ross [2024] NZDC 8115 at [2].
8 The failure to appear led to a further charge of failure to answer bail: Bail Act 2000, s 38(a) (maximum penalty of one year’s imprisonment or $2,000 fine).
[6] On 14 December 2023, Mr Ross sent a photograph of himself holding a firearm with a voice message via Facebook stating, “Fuck you little bitches, I’m coming for you first ha ha”.9 Later that night Police arrested Mr Ross and executed a search warrant at his property finding shotgun cartridges and a sawn-off shotgun in his garage.
[7] Mr Ross is the respondent of a protection order that has been in force since 26 May 2015 to protect his former partner, who is also the mother of his children. By being in possession of a firearm and ammunition on 14 December 2023, he was in breach of the standard condition not to possess weapons. However, the person he sent the message to was not his former partner. The offending in December had nothing to do with her. She had moved to Auckland with the children before Mr Ross’ 2023 offending.
Sentencing decision under appeal
[8] After recounting the offending, the Judge turned to consider Mr Ross’ criminal history, noting it ran to eight pages and that he had received sentences of intensive supervision in the past for dangerous driving and family violence matters.10 The Judge commented that Mr Ross did not have a good driving record, nor did he have a good record of complying with Court orders.11
[9] The Judge then referred to Mr Ross’ PAC reports. The first report on 3 November 2023 expressed Mr Ross’ motivation to sort things out, which the Judge described as “short-lived”, because by 14 December 2023 Mr Ross found himself on serious charges.12
[10] The Judge also referred to affidavits filed by Mr Ross and his mother which demonstrated Mr Ross was a person with practical skills, but he had associated himself with the wrong people. Mr Ross had explained his December offending, saying people had threatened him, and he reacted badly.13
9 Police v Ross, above n 7, at [7].
10 At [10].
11 At [11].
12 At [13].
13 At [14].
[11] Mr Ross’ mother had also filed an affidavit in support of her son, referring to her view that her son might have ADHD, but he is intelligent and skilled at work and is supportive of his children who were now based in Auckland.14
[12] The Judge noted there were few options in terms of the outcome, which would involve a sentence of imprisonment.15
[13] The Judge dealt first with the driving offending on a discrete basis because it was a separate sequence of events. His Honour considered the offending was serious with a potential for harm as a result of the driving. The Judge adopted a starting point of two months’ imprisonment with credit for pleading guilty at an early opportunity resulting in a sentence of six weeks’ imprisonment.16
[14] The charges of breach of bail and possession of ammunition were dealt with by way of a conviction and discharge.17
[15] The Judge noted that the possession of the firearm was serious as it was associated with threats and its possession was in breach of the protection order. His Honour adopted a starting point of 17 months’ imprisonment for those two charges taken together. He imposed an uplift for “your history around breaches of protection order of three months”. The credit for guilty plea was 25 per cent, or five months, resulting in a sentence of 15-months’ imprisonment.18
[16] The Judge imposed the sentences cumulatively, resulting in a total sentence of 16 months and two weeks’ imprisonment.19
Approach on appeal
[17] Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. A first appeal court must allow the appeal if satisfied that, for any reason, there is an
14 At [15].
15 At [16]. No address was available for an electronically monitored sentence.
16 At [17].
17 At [18].
18 At [19].
19 Mr Ross was also disqualified from driving for eight months and there was an order for destruction of the firearm and ammunition.
error in the sentence imposed, and a different sentence should be imposed. The Court would not ordinarily intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.20
[18] When considering whether a different sentence should be imposed, the Court will have regard to the end sentence, rather than the process by which it was reached. It is appropriate for the Court to intervene where the sentence is manifestly excessive and is not justified by the relevant sentencing principles.21 It must be shown that there has been an error made by the sentencing Judge.22 The Court cannot tinker with a sentence imposed where that end sentence is nevertheless in range.23
Discussion
[19] As above, there are two grounds of appeal: the uplift imposed for previous convictions and the failure to reduce the sentence for its effect on Mr Ross’ children.
[20] I note first that both counsels’ submissions proceeded on the basis that the Judge had imposed sentence by adopting a starting point of 17 months (which is not criticised) and added an uplift of two months to reflect the driving charges. However, that is not the case. The Judge made it clear that he was imposing sentence for the two sets of offending of a cumulative basis.
[21] Although this was described as unorthodox by the respondent, it is not, given s 84 of the Sentencing Act 2002, which instructs that cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences. In this case, the two sets of offending were clearly separate.
[22] Care is needed however to ensure that any aggravating factors taken into account in respect of one offence are not considered in respect of a cumulative sentence imposed for another offence so as to result in double-counting.24
20 Tutakangahau v R [2014] NZCA 279 at [32]–[35].
21 Tutakangahau v R, above n 20.
22 At [27].
23 R v Boyd (2004) 21 CRNZ 169 (CA) at [38].
24 Jenner v Police [2020] NZHC 62 at [24].
[23] The Judge could also have followed an alternative approach of identifying an appropriate starting point on the lead offence and then applying an uplift to reflect the other offending. The Court of Appeal has said that regardless of which approach is adopted, the result should be similar and should reflect overall culpability.25
[24] However the sentence was constructed, I am of the view that an uplift for Mr Ross’ previous offending was not warranted in the present case, but particularly given the approach the Judge took.
[25] The majority of Mr Ross’ criminal history relates to driving charges. However, given the two-month starting point for that offending, any uplift would have had to be small to non-existent to ensure it was proportionate to the starting point.
[26] On the more serious charges, namely possession of the firearm and breach of protection order, the Judge said he was imposing the uplift for Mr Ross’ previous breaches of protection order. Mr Ross does have convictions for breaching the protection order in 2016 and in 2019. However, those breaches are now between five and eight years ago and they are of an entirely different nature to the current breach. And Mr Ross was sentenced to intensive supervision on one (along with a number of other charges), and was convicted and discharged on the earlier breach. In my view, they do not warrant an uplift of imprisonment as a consequence.
[27] The only other offending of relevance to the two more serious charges is a charge of possession of a knife in a public place; a Summary Offences Act 1981 offence in 2010, and possession of an offensive weapon in 2009. Both of these convictions are minor and historic. Again, in my view, they did not warrant an uplift, which would amount to further punishment by a prison sentence, when they occurred long ago and did not attract a sentence of imprisonment.
[28] As Mr Ross’s counsel points out, Mr Ross has no history of physical violence, threatening behaviour or possession of firearms or ammunition. Thus, the previous convictions cannot be regarded as relevant to a prediction of future behaviour, nor do
25 Maihi v R [2016] NZCA 205 at [21]–[22].
they indicate a predilection to commit a particular type of offence, nor are they of such a number or seriousness that protection of the community might justify an uplift.26
[29] However, I am unable to accept the submission that credit should have been applied for the impact of Mr Ross’ custodial sentence on his children. While I note the Supreme Court has said that such discounts are not confined to whether a person is the primary caregiver, and a consideration of all the relevant circumstances is required (including the interests of the children),27 I do not consider there is an evidential basis on which a discrete discount can be applied for this factor.
[30] This is not a case, for example, where Mr Ross has had full-time, or primary responsibility for his three children. Two were living with their mother in Auckland at the time of the offending, and the third child, Mr Ross’ stepson, has relocated to Australia to live with his biological father. In my view, Mr Ross’ circumstances are quite different to cases in which separate credit has been given for the effect of sentence on children.
[31] I do note however Mr Ross’ aspirations to rebuild his relationship with his children and to give them as much support as he can, along with his desire to be a positive influence on them. As well, he has his mother’s support to help him achieve those aims. Mr Ross does have skills, the motivation to make changes in his life, and a degree of insight. I am of the view that his motivation to change, his real prospects of rehabilitation, and his family support could appropriately have been the subject of a credit of around five per cent.
[32] I have found errors in the Judge’s sentencing in this case: an uplift for previous convictions that was not warranted and a modest reduction for rehabilitative prospects not given. In light of that conclusion, I construct the sentencing exercise again to decide if the end sentence was manifestly excessive.
26 Johnston-Walters v R [2011] NZCA 367 at [29].
27 Philip v R [2022] NZSC 149 at [53]–[56].
[33]In my view, the construction of the sentence ought to be as follows:
August charges
(a)A starting point of two months for the August driving charges, both of which had a maximum penalty of three months’ imprisonment. That starting point is appropriate to reflect a serious incident of bad driving.
(b)A reduction of 25 per cent for early guilty pleas leading to an end sentence of six weeks’ imprisonment for the driving charges.
December charges
(a)A starting point of 17 months’ imprisonment for the December offending, which is accepted as an appropriate starting point to reflect both the charge of possession of a firearm and the charge of breach of protection order.
(b)A reduction of 25 per cent to reflect Mr Ross’ guilty pleas (approximately four months). I note I do not accept the respondent’s submission that the guilty plea discount was generous and 22.5 per cent could have been justified. The second set of offending had guilty pleas at case review stage. Given Mr Ross’ remand in custody and the well- known difficulties involved in contact between counsel and their clients in custody, in my view, that is not a delay justifying a reduced discount.
(c)A one-month uplift for offending while on bail awaiting sentencing, which Mr Ross did not appear at. The Judge did not impose any uplift for this factor, but it would have been appropriate to do so.
(d)A reduction of five per cent (one month) to reflect Mr Ross’ rehabilitative prospects.
(e)This results in an end sentence of 13 months’ imprisonment.
Final sentence
(a)the sentences being cumulative, the result is an end sentence of 14 months and two weeks’ imprisonment.
[34] The sentence imposed was 16 months and two weeks––a two-month difference. The sentence I have calculated results in a reduction of approximately 12 per cent. I do not consider that reduction amounts to tinkering, given the significant practical effect of such reduction in the context of a short-term period of imprisonment, where Mr Ross has been in custody for some five months, and will now be eligible for release one month earlier than he would otherwise have been.28
Result
[35]The appeal is allowed.
[36] The sentence of six weeks’ imprisonment imposed on the August 2023 driving charges stands. The cumulative sentence of 15 months’ imprisonment on the charge of possession of a firearm and breach of protection order is quashed, and a sentence of 13 months’ imprisonment is substituted. All of the other sentences or orders stand.
Grau J
Solicitors:
Public Defence Service, Christchurch for Appellant Crown Solicitor’s Office, Christchurch for Respondent
28 For example, Police v Stenning [2023] NZHC 3477.
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