Blandford v Police

[2019] NZHC 3112

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2019-416-20

CRI-2019-416-22 [2019] NZHC 3112

BETWEEN

FREDERICK GEORGE DICK BLANDFORD
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	26 November 2019
Counsel:	A M Simperingham and Dr K C Leung for Appellant A V Bryant for Respondent
Judgment:	27 November 2019

JUDGMENT OF SIMON FRANCE J

[1]Mr Blandford appeals a sentence of 15 months’ imprisonment.1

Offending

[2]                 There are two sets of offending underlying the sentence. The most serious are charges of assault with a weapon,2 and intimidation.3 This was a domestic-related incident where Mr Blandford, armed with a dinner knife, pursued the victim outside. She ended up on her knees with him holding the knife to the side of her neck.

1      R v Blandford [2019] NZDC 19056 [The Substitute Sentencing Decision], see also R v Blandford

[2019] NZDC 12622 [The Sentencing Decision].

2      Crimes Act 1961, s 202C; maximum penalty five years’ imprisonment.

3      Summary Offences Act 1981, s 21(1)(e); maximum penalty three months’ imprisonment or a

$2,000 fine.

BLANDFORD v NEW ZEALAND POLICE [2019] NZHC 3112 [27 November 2019]

[3]                 The incident was observed by a woman in a stationary car. Mr Blandford got into his own vehicle and drove to where she was. He parked alongside so as to prevent the woman from opening her car door. He “eyeballed” her.

[4]                 The second set of charges are drug related. Mr Blandford was growing cannabis in a modified room at the address where he was living. There were 14 mature plants and 16 seedlings. The charge is cultivation, to which he pleaded guilty.4 It is not alleged the growing was other than for personal use. Mr Blandford was also charged with possessing pipes able to be used for smoking methamphetamine.5

[5]                 Mr Blandford has previous drug convictions. In 2016 he was sentenced to six months’ community detention for cultivating cannabis. In 2009 he was sentenced to 50 hours’ community work for the same offence. In 2006 he was convicted and discharged on a  charge  of  possessing  cannabis.  In  2000  he  was  sentenced  to  15 months’ imprisonment for possessing cannabis and cannabis oil for supply, and manufacturing the cannabis oil.

Sentencing history

[6]                 The sentencing Judge allocated a starting point of 10 months’ imprisonment for the drug offending, and 14 months for the violence offending.6 He then made a totality adjustment to reduce the overall starting point to 20 months. There was then a two-month uplift for past offending. Recognising guilty pleas on the drug offending and intimidation charge, there was a two-month deduction, thereby returning the total to 20 months.

[7]                 The Judge had in mind that home detention would be the outcome. So he further reduced the sentence by four months, being a one-for-one credit for time spent in custody (2.5 months) and 1.5 months’ credit for three months of EM bail.7 The final total of 16 months’ imprisonment was converted to a sentence of eight months’ home detention.8

4      Misuse of Drugs Act 1975, s 9(1); maximum penalty seven years’ imprisonment.

5      Section 13(1)(a) and (3); maximum penalty one years’ imprisonment or a $500 fine.

6      The Sentencing Decision, above n 1, at [2] and [6].

7      At [12]-[13].

8 At [15].

[8]                 That situation lasted barely two weeks before Mr Blandford breached by absenting himself without permission. He was re-sentenced.9 The Judge again gave credit for the two weeks on home detention, and also the five weeks in custody since his re-arrest. This reduced the appropriate sentence to 14 months, but one month was added for the home detention breach, leaving the present outcome of 15 months.10

Appeal

[9]                 The focus of the appeal is on the original starting points, and I agree that is the appropriate place to start. Each link is challenged.

[10]              The most serious offending was the assault with the knife and I consider that should be the lead sentence. The Judge took 14 months for both this offence and the intimidation charge. By reference to more serious cases where there were contact assaults,11 Mr Simperingham for Mr Blandford submits a starting point of 14 months is too proximate.

[11]              The Crown submits the aggravating features are the domestic context and holding the weapon to the neck. Reliance is placed on the High Court decision in Hotu v Police where the lead offence was holding a knife to his pregnant partner’s throat whilst she held a young child.12 It was accompanied by a threat to kill her and her family. Having reviewed other authorities, Woolford J adopted a starting point of 15 months.13 By reference to this, and noting the starting point includes allowance for the intimidation charge, it is submitted 14 months was an available starting point.

[12]              The appellant also queries a factual finding of the sentencing Judge in relation to this set of offending. At trial the prosecution relied on the observer to prove its case. Mr Blandford called the victim as a witness. The prosecution witness said she heard the victim say, “You tried to stab me in the neck”. The victim accepts she said this, but says she was making it up at the time.

9      The Substitute Sentencing Decision, above n 1.

10 At [5].

11     Korewha v R [2018] NZHC 1896; Tihi v New Zealand Police [2019] NZHC 771; and Ranfurly v New Zealand Police [2017] NZHC 2077.

12     Hotu v New Zealand Police [2013] NZHC 229.

13 At [32].

[13]              At sentencing, the Judge accepted the blade was at the woman’s neck and that she said the words already noted. The appellant reads the sentencing remarks as indicating a finding of an actual attempt to stab. I do not necessarily read them that way, but acknowledge it is unclear why the comment was otherwise the focus of attention at sentencing. I proceed on the basis there was no attempt to stab – had there been it is unclear why it would not have succeeded.

[14]              I have not been persuaded the starting point is too high. Based on Hotu and the cases referred to therein, the 14 months’ starting point is within range. In Hotu, the Judge isolated a  very  similar  incident  and  based  on  the  authorities  settled  on  15 months. A slightly lesser figure here, including allowance for intimidation, was within range.

[15]              Turning to the cannabis offending, I am satisfied the starting point is manifestly excessive. The Crown acknowledge this sort of offending would, standing alone, normally not attract imprisonment. However, it is submitted Mr Blandford’s offending has reached the “persistent” stage such that R v Terewi recognises even for band one offending a short term of imprisonment maybe appropriate.14 I am advised the 2016 cultivation offending involved 160 plant seedlings, and the 2009 offending involved 10 mature plants.

[16]              I accept there is scope for debate as to what the nature of the sentence would be if standing alone. In the present circumstances, however, given the lead sentence is one of imprisonment, it merited a modest uplift of around one month taking into account the guilty plea. It is important to recognise it was a small grow for personal use. Ten months is accordingly well above anything that is appropriate.

Adjustments

[17]              The correct starting point is 15 months’ imprisonment, being 14 for the assault and intimidation, and one for the cannabis. No totality adjustment is required. I accept the two-month uplift for past offending and do not consider any adjustment is needed

14     R v Terewi [1993] 3 NZLR 62 (CA) at [4].

to recognise the intimidation guilty plea, since some guilty plea credit already attaches to the size of the cannabis uplift.

[18]              I also agree there should be a one-month uplift for the home detention breach, meaning a final sentence, before adjustments, of 18 months.

[19]              The District Court made adjustments for time served on custodial remand, being 2.5 months prior to initial sentence, and five weeks post Mr Blandford’s arrest for the home detention breach. Pre-hearing inquiries have confirmed that both periods will automatically be credited by the Department of Corrections. They should not be part of the sentencing exercise.

[20]              I would not have given credit for such a small period on EM bail, but it does not matter as any further adjustment  will  still not  make  the  present  outcome  of 15 months’ imprisonment manifestly excessive. On my calculations, the sentence should have been higher, even allowing for the lesser sentence on the drug offending. The final outcome is not manifestly excessive because:

(a)the Judge made a totality adjustment that removed some of the excess; and

(b)the Judge wrongly gave credit for time served. Allowance for that will be given when the sentence expiry date is calculated. It should not be considered when sentencing to imprisonment.

[21]              All that said, there are errors in the way the sentence has been constructed that necessitate me formally allowing the appeal in order to correct the record. Presently, the 15 months’ sentence has been achieved by imposing that term in relation to the breach of home detention charge. As well as being an example of mislabelling the seriousness of the offence, the maximum for that offence is only 12 months.15

[22]              I therefore allow the appeal, quash all existing sentences and impose the following:

15     Sentencing Act 2002, s 80S; maximum penalty one years’ imprisonment or a $2000 fine.

(a)on the charge of assault while possessing a weapon, 15 months’ imprisonment;

(b)on the charge of intimidation, one month’s imprisonment;

(c)on the charge of possessing pipes for smoking methamphetamine, one month’s imprisonment;

(d)on the charge of cultivating cannabis one month’s imprisonment; and

(e)on the charge of breaching home detention conditions, one month’s imprisonment.

[23]All sentences are concurrent.

Simon France J

Solicitors:

Woodward Chrisp, Gisborne for Appellant

Crown Solicitor’s Office, Gisborne for Respondent