Birch v The Queen

[2010] NZCA 228

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 100/2010
[2010] NZCA 228

BETWEENANDREW JAMES BIRCH

Appellant

ANDTHE QUEEN

Respondent

Hearing:19 May 2010

Court:William Young  P, Chisholm and Keane JJ

Counsel:J S Jefferson for Appellant

B Hawes and M G Robinson for Respondent

Judgment:2 June 2010 at 3.30 pm

JUDGMENT OF THE COURT

Appeal against sentence of two years, seven months imprisonment dismissed.

REASONS OF THE COURT

(Given by Keane J)

[1]        On 20 November 2009 Andrew Birch was sentenced by Judge Adeane in the District Court, Napier, to an effective term of two years seven months imprisonment. The Judge sentenced him to 21 months imprisonment for possession of cannabis for the purpose of sale and, cumulatively, to a further six months for driving while disqualified, a third or later offence, and to a further four months for attempting to escape from custody. He appeals the two cumulative sentences as excessive in themselves and as making his total sentence manifestly excessive.

[2]        On sentence Judge Adeane also imposed on Mr Birch sentences that did not affect its effective term. He sentenced him concurrently to two months imprisonment for dangerous driving. He imposed no penalty for resisting a constable. He imposed two months concurrently for breach of a community work order and on review cancelled it. When set against that entirety, the Crown contends, neither the cumulative terms imposed, nor the total sentence, were disproportionate.

Offences for sentence

[3]        On 4 December 2007 Mr Birch was stopped, while driving, by a police officer. The officer smelt a strong smell of cannabis in the car. That led him to exercise his statutory power to search, without warrant, both the car and Mr Birch. In the car he found three bags of cannabis, weighing perhaps three ounces, a mature cannabis plant, and tinfoil cut to length for bullets or tinnies. Also located was $200 cash in the glovebox, $960 in the centre console and on Mr Birch himself $2,450. The cash was mostly in $20 notes.

[4]        On 5 December 2007, when Mr Birch first appeared charged with possession for the purpose of sale, he was allowed bail. In January 2008 he elected summary jurisdiction and entered a not guilty plea. A summary hearing was to take place on 9 April 2008. Before then, however, he vacated his election and, as it turned out, his trial could not take place until late 2009. On 16 November 2009, just days before his trial, he pleaded on arraignment.

[5]        Between December 2007 and the date of his arraignment Mr Birch was on bail until 7 September 2009. He was then remanded in custody. While on bail he had continued to offend, in the main by driving persistently while prohibited or while his licence was suspended, and in three instances in other ways that were independently serious.

[6]        On 8 March 2009 Mr Birch was forbidden from driving until he obtained an appropriate driver's licence. He drove while forbidden, an offence attracting a fine only, once in March, three times in April, and once in May. On 16 April 2009 he also drove carelessly. In the early morning that day, though still forbidden to drive, he pursued at excess speed in a residential area someone with whom he had just been arguing. In the pursuit he lost control. His car left the road and smashed into a concrete fence. He was charged with dangerous driving.

[7]        On 16 May 2009, the fifth occasion on which Mr Birch drove while forbidden, the Land Transport Authority suspended his driver's licence for three months. On three occasions in June 2009 Mr Birch drove while his licence was suspended; an offence equal in law to driving while disqualified. Two of these three offences were in the aggravated category, being third or later offences.

[8]        On 31 July 2009 Mr Birch appeared for sentence for all his offences in the first half of that year, to all of which he had pleaded guilty, and he was sentenced to 120 hours community work and disqualified for 13 months. Still he was not deterred.

[9]        On Sunday, 6 September 2009, in the early afternoon, he drove yet again and without wearing a seatbelt. Police attempted to stop him. In a 50 kilometre per hour area he accelerated away. They pursued him over three kilometres. His speed ranged between 80 - 100 kilometres an hour. He cut at least one corner. He drove more than once on the wrong side of the road. He put at risk the occupants of the patrol car and, finally, several children. He abandoned the car and was captured after a chase.

[10]       The next day, 7 September 2009, Mr Birch appeared in the Hastings District Court. As he entered the courtroom from the cells he pushed the door back against the officer escorting him. He ran from the courtroom. His brother, it is said, impeded the officer pursuing him. When the officer finally caught up with him some way down the street he struggled vigorously. They went to the ground. Once again, it is said, the officer was impeded by others, or there was that risk. Other officers had to assist.

[11]       On sentence Mr Birch also stood charged with and admitted to a complete breach of the sentence of community work, and there was an application to cancel that sentence to which the Judge acceded. Mr Birch had not reported within 72 hours of the sentence being imposed. He had served no part of it.

Materials on sentence

[12]       Mr Birch, his pre-sentence report said, had experienced a good childhood. His mother, it said, supported him still and described him as having the capacities of a leader. He was generous, she said, and had a passion for working with troubled youth. A co-worker at a drop-in centre for youth in Flaxmere agreed.

[13]       Mr Birch, his report said, was an occasional and moderate drinker. But, as he himself accepted, he had in recent years been addicted to methamphetamine. In the four months during which he had been in custody, it said, he claimed to have been drug free. His willingness to face up to his addiction was considered to be real.

[14]        Mr Birch, his report said, had a criminal history spanning 27 years but it was noted that since 2000, though he had amassed 12 further convictions, they were of a less serious order. He had significant fines outstanding. He struggled to explain his present offending. He regretted not having pleaded to the possession offence immediately. He did not express any more specific remorse. He accepted he would be sentenced to imprisonment. No other sentence was recommended.

[15]       The Judge had letters from Mr Birch's mother and his daughter saying that in recent years he had become very inattentive and forgetful; symptoms presumably consistent with methamphetamine addiction. Mr Birch relied also on a 'community survey' in which 78 people within the Flaxmere community subscribed to the proposition that he was not a public threat. That, indeed, that he was “an outstanding, valued and much loved man to youth at risk residing at Flaxmere”.

Sentencing decision

[16]       On sentence the Judge began by remarking that Mr Birch had pleaded to the possession offence on the eve of trial; and only after he had been remanded in custody. Before then, the Judge said, he had delayed and persisted in offending. He had made no attempt to serve the 120 hour community work sentence imposed in July.

[17]       When refused bail on 7 September 2009, the Judge said, Mr Birch had feigned a heart attack but then later ‘recovered’ sufficiently to escape from custody temporarily. That he was an opportunist, the Judge said, was apparent from the 'public survey' on which he relied. Mr Birch, the Judge said, was neither committed to his community nor its young people. He was a drug dealer who exploited the young.

[18]       For the possession for sale offence, Mr Birch's principal offence, the Judge took a two year starting point. Though on the Hessell[1] principle he thought Mr Birch might not be entitled to any discount for plea, he allowed him ten per cent, reducing that sentence to 21 months. By the cumulative sentences he imposed the Judge then increased the effective term of Mr Birch's sentence by ten months.

Grounds of appeal

[1]      R v Hessell [2009] NZCA 450, (2009) 24 CRNZ 612.

[19]       On this appeal Mr Birch takes no issue with the principal sentence imposed. As Mr Jefferson rightly accepted, the possession for sale offence lay within category two of Terewi[2] and that justified the Judge's starting point. He did not question the discount for plea given, though that was calculated having regard to Mr Birch's principal offence only.

[2]      R v Terewi [1999] 3 NZLR 62 (CA).

[20]       Nor could Mr Birch challenge, Mr Jefferson again rightly accepted, the Judge's decision to impose the cumulative sentences. These were imposed for discrete later offences. His challenge was as to their length. The driving while disqualified offence did not warrant, Mr Jefferson submitted, a cumulative six month term. At most it warranted two months. The attempted escape did not warrant a cumulative four month term. At most it warranted one month. Any effective sentence in excess of two years imprisonment, Mr Jefferson submitted, had to be disproportionate to Mr Birch's total culpability.

[21]       Mr Jefferson also submitted that when the Judge imposed the cumulative sentences, not just when imposing the sentence for Mr Birch’s principal offence,  the Judge had to take into account Mr Birch's personal circumstances. These were submitted to be more encouraging than the Judge gave him credit for. Mr Birch had not merely, when assessed, been drug free for four months. He had, as set out in a newspaper article produced on  appeal, apologised to his community and the organisations that serve it. He had begun to write a book 'The Fight Against P' that was to be used as a community resource.

[22]       For these reasons, Mr Jefferson submitted, the cumulative sentences the Judge imposed exceeded what was called for to hold Mr Birch accountable, and to denounce and to deter his offending. They render the entire sentence manifestly excessive.

Outcome

[23]       We are unable to agree. The effective sentence that the Judge imposed was warranted by the entirety of Mr Birch's offending; not just by the offences for which the cumulative terms were imposed but by the offences for which Mr Birch received concurrent sentences or no penalty at all.

[24]       That apart, the six month term imposed cumulatively for the driving while disqualified offence was well warranted. This was an offence on bail. It was compounded by the dangerous driving offence that could itself have attracted a cumulative term. It was in the aggravated category in that it was a third or later such offence. Mr Birch had seven such previous convictions, three for offences committed in the weeks before. As to those three, he escaped any penalty once the Judge cancelled the community service order without imposing any sentence in its place.

[25]       The four month cumulative term the Judge imposed for the attempted escape was equally well warranted. Mr Birch made a determined attempt to escape from the Court's custody; an offence consistent with his attempt the day before, in the pursuit, to evade capture. The Judge declined to impose further sentences on the earlier matters for review as well as the resisting a Constable offence, both aggravating of the sentence. Also, Mr Birch may have been intent only on escaping. But his attempt may have carried some risk to the safety of the public both inside the Courtroom and outside. A deterrent sentence was called for.

[26]       The information about Mr Birch that we received on the appeal, which was not available to the Judge, is encouraging. But it does not begin to suggest that the cumulative terms imposed were excessive, and with that the total sentence. Mr Birch's appeal against sentence will be dismissed.

Solicitors:

Crown Law Office for Respondent