Boyland v Police
[2015] NZHC 2463
•8 October 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2015-485-47 [2015] NZHC 2463
BETWEEN FLOYD BOYLAND
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 6 October 2015 Counsel:
J Griffiths for Appellant
S C Carter and R Georgiou for RespondentJudgment:
8 October 2015
JUDGMENT OF SIMON FRANCE J (Appeal against sentence)
[1] Mr Boyland appeals a final sentence of two years and nine months’ imprisonment imposed in relation to twenty-one offences to which he had pleaded guilty. The Judge took a starting point of three years’ imprisonment. This was expressed to be for the lead offence of threatening to kill, but in fact there was no uplift for any of the other offending to reflect totality. The three years therefore covers Mr Boyland’s culpability for all the charges. There was then a six month uplift for Mr Boyland’s past offending record. Nine months was deducted to reflect
the guilty plea and the end sentence was produced.1
[2] The appeal focused on the correctness of the three year starting point for threatening to kill. However, for the reason already given, the analysis must be on
whether the three years starting point was excessive for the totality of the offending.
1 NZ Police v Boyland [2015] NZDC 12117.
BOYLAND v NZ POLICE [2015] NZHC 2463 [8 October 2015]
The offending
[3] The offences are best detailed in chart form:
Threatening to kill
2 years 9 months’ imprisonment
Unlawfully carry/possess firearm
2 years’ imprisonment (concurrent)
Possession of an offensive weapon
1 year imprisonment (concurrent)
Unlawfully carry/possess firearm
2 years’ imprisonment (concurrent)
Possession of knife in public place
1 month imprisonment (concurrent)
Wilful damage
1 month imprisonment (concurrent)
Cultivate cannabis
6 months’ imprisonment (concurrent)
Procure/possess cannabis
1 month imprisonment (concurrent)
Breach of the Medicines Act
1981
Convicted and discharged
Theft (under $500)
1 month imprisonment (concurrent)
Theft (under $500)
1 month imprisonment (concurrent)
Theft (under $500) (x5)
1 month imprisonment (concurrent)
Receives property (under
$500)
1 month imprisonment (concurrent)
Theft (under $500) (x2)
1 month imprisonment (concurrent)
Receives property (under
$500) (x2)
1 month imprisonment (concurrent)
[4] The primary incident was an occasion when an angry Mr Boyland called in at his mother’s house to retrieve some clothing. Whilst inside, anger seemed to get the better of him and he punched a hole in a wall (wilful damage). Mr Boyland’s mother came to investigate, at which time Mr Boyland pointed a loaded shot gun at her face and said:
I going to shoot someone, or I could shoot you. (Threatening to kill)
He then left.
[5] The Police were called and located Mr Boyland driving. A search of the vehicle revealed the shotgun still loaded, together with two further rounds of ammunition and two knives (possession of firearm, and possession of knives). There is also a charge of carrying a firearm, which relates to Mr Boyland’s possession of the same shotgun earlier in the day.
[6] Looking at the other offences, the number of theft charges reflect Mr Boyland’s propensity to fill his car with petrol and leave without paying. However, charge three, possession of an offensive weapon, deals with much more serious related offending. On one such occasion of petrol theft, a person connected with the petrol station followed Mr Boyland and approached the car. Mr Boyland opened the door and presented the knife at the person.
[7] The remaining charges relate to either the theft or receiving of number plates, or to the cultivation of cannabis. Concerning the cannabis offending, a search of Mr Boyland’s residence found two cannabis plants growing in a “grow room” equipped with a fan and light. The plants were in average condition but each was
1.5 metres in height.
Discussion
(a) Starting point
[8] This description of all the offending highlights the centrality of the ultimate question in sentence appeals, namely whether the final outcome is manifestly excessive. Analysis of individual steps such as a three year starting point for threatening to kill can sometimes assist, but the ultimate question must be kept firmly in mind.
[9] Here there is room for debate about whether the threatening to kill incident standing alone would sustain a three year starting point.2 Authorities can be more
easily found that support starting points from eighteen months through to two and a
2 This assumes the three year starting point was only for threatening to kill. Although it was expressed that way, it is probable the Judge intended it as a figure that covered all the offending.
half years for an incident such as the present one,3 but in assessing the availability of three years, the other offending has to be considered.
[10] Mr Boyland was found in possession of two knives when his car was searched. Earlier, on a separate occasion, he had presented a knife at a member of the public who was merely pursuing Mr Boyland because he had stolen from him. This is a serious example of the offence of possessing an offence weapon, involving as it does the use of the weapon. Next, the numerous low level thefts merit separate acknowledgement – eg on eight separate occasions Mr Boyland stole petrol. Finally, there is the cultivation of cannabis charge, which shows a degree of endeavour but no suggestion of it being done in order to supply others.
[11] When all this offending is considered together, no real issue can arise with a three year starting point. While it is not the most serious incident of threatening to kill, it must be observed that Mr Boyland had the gun with him, it was illegal and lethal, it was loaded, he pointed it directly into his mother’s face, and afterwards he took the weapon with him, still loaded, and drove with it until stopped by the police. A starting point of at least two years’ imprisonment was plainly within range.
[12] I consider the incident when the knife was presented at the petrol station employee is also a serious offence requiring strong denunciation. Together these two incidents alone support three years without considering the remaining matters.
(b) Uplift
[13] There is no challenge to a six month uplift for previous convictions. It is to be noted Mr Boyland has 11 previous convictions for violence or possession of weapons. Since 2010 he has been sentenced to 18 individual prison terms. Matters of individual deterrence and protection of the public gain some prominence and a six
month uplift was appropriate.
3 Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011; R v Sykes HC Christchurch CRI-2008-009-2603, 19 May 2009; Freakley v R [2010] NZCA 497; Simon v R [2014] NZCA 207; R v Puke [2009] NZCA 582.
(c) Guilty plea discount
[14] The sentencing Judge misunderstood the timing of the plea believing it had taken nine months. In fact the delay was much shorter and there is no doubt that a routine 25 per cent would normally have been given. The discount actually given is around 20 per cent. Given the strength of the Crown case that level of discount could easily be supported. However, there is nothing to suggest the Judge would have given less than 25 per cent but for his misunderstanding of the timing of the plea.
[15] In these circumstances and somewhat fortuitously for Mr Boyland given that the end sentence is not manifestly excessive, I consider the interests of justice and fairness support an adjustment. It is often appropriate to correct a sentence where a factual error has influenced the final outcome, and I assess this as one such occasion.
Conclusion
[16] The appeal is allowed. The new sentence on the threatening to kill charge is
two years seven months’ imprisonment. All other sentences are unchanged.
Simon France J
Solicitors:
Public Defence Service, Wellington
Luke Cunningham & Clere, Crown Solicitors, Wellington
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