Britton v Police

[2014] NZHC 1256

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-010 [2014] NZHC 1256

IN THE MATTER OF

Section 244 of the Criminal Procedure Act

2011

BETWEEN

JADE EMMA BRITTON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	4 June 2014
Counsel:	P Ross for Appellant C R Walker for Respondent
Judgment:	5 June 2014

JUDGMENT OF KATZ J

This judgment was delivered by me on 5 June 2014 3:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:           Cathedral Lane Law, Napier

Elvidge & Partners, Crown Solicitor, Napier

BRITTON v NEW ZEALAND POLICE  [2014] NZHC 1256 [5 June 2014]

Introduction

[1]      The appellant, Jade Britton, pleaded guilty in the District Court at Napier to a charge of giving a false alarm of fire, an offence under the Fire Service Act 1975.1

The maximum penalty for the offence is three months’ imprisonment or a fine of up

to $500.2

[2]      Ms  Britton  pleaded  guilty  to  the  charge  and  was  sentenced  by  Judge

A J Adeane to 80 hours’ community work.  She was also ordered to pay reparation of

$372.42.   She now appeals that sentence.   In particular, Ms Britton says that she should not have been ordered to undertake community work, in addition to paying reparation.

[3]      The essential issue raised by this appeal is whether the imposition of 80 hours community work, combined with reparation, was a manifestly excessive sentence in all  the  circumstances  of  this  case.  Determination  of  that  issue  requires  me  to consider:

(a)      whether the Judge erred in his assessment of Ms Britton’s culpability, particularly given that she was a party to the offence rather than the principal offender;

(b)      whether the Judge was required to take into account a “plea bargain”

arrangement between the police and Ms Britton;

(c)       whether the Judge provided an appropriate guilty plea discount; and

(d)      whether  the  Judge  gave  appropriate  weight  to  factors  such  as

Ms Britton’s age and her willingness to pay the costs of the call-out.

[4]      I will address each issue in turn, after briefly outlining the legal principles relevant to determination of this appeal.

Approach to sentence appeals under the Criminal Procedure Act 2011

[5]      An appeal against sentence is an appeal against the exercise of a discretion. Under s 250 of the Criminal Procedure Act 2011, the Court must allow the appeal if it is satisfied that there was an error in the sentence imposed and that a different sentence should replace it.  If so, the Court may set aside the sentence and impose another, vary the sentence, or remit the sentence to the Court that imposed it.

[6]      The Criminal Procedure Act essentially confirms the approach taken in the now-repealed Summary Proceedings Act 1957.  The approach to be taken to appeals under s 121(3) of that Act was set out in Yorston v Police, where the Court said:3

(a)      There must be an error vitiating the lower court’s original sentencing discretion: the appeal must proceed on an “error principle”.

(b)To establish an error in sentencing it must be shown that the Judge in the lower court made an error whether intrinsically or as a result of additional material submitted to the appeal court.

(c)      It is only if an error of that character is involved that the appeal court should re-exercise the sentencing discretion.

[7]      The focus of an appeal against a sentence imposed is on the correctness of the end result, not the process by which the sentence was reached.   As the court of Appeal observed in Ripia v R:4

…this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive. The  route  by  which  the  Judge  reached  that  outcome  will  be relevant to the analysis, but seldom in itself pivotal.

[8]      The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

Did the Judge err in his assessment of Ms Britton’s culpability?

[9]      Ms Britton is 17 years old.  She was with her step-sister (aged 13) when an emergency call was placed with the fire service.  The caller claimed that their house was on fire and that her father had been dragged from the fire and was not breathing. Emergency   services   staff   talked   the   caller   through   the   administration   of cardio-pulmonary resuscitation  and  dispatched  both  fire  and  ambulance  services (including three of the four Hawkes Bay ambulances) to the scene.

[10]     The call was a hoax.  When emergency services arrived, Ms Britton and her step-sister ran off.  Ms Britton was stopped by police in a nearby carpark and spoken to about the hoax call.  She admitted her involvement and, by way of explanation, said that she was bored and wanted something to do.  At the time, Ms Britton was under the supervision of the Youth Court for various dishonesty offences.

[11]     It was initially not clear whether Ms Britton or her step-sister was the actual caller.  The police believed that Ms Britton was the caller, but she insisted that her step-sister was  the caller.   After listening to  a recording of the call,  the police ultimately accepted that Ms Britton’s step-sister was the caller. Ms Britton acknowledged, however, that she had provided her step-sister with the phone used in the call.  Given her age, the step-sister is subject to the jurisdiction of the Youth Court.

[12]     Once it had been established who the caller was, Ms Britton agreed to plead guilty to an amended summary of facts that made it clear that she was a party to the offence rather than the principal offender.  The Judge’s assessment of Ms Britton’s culpability was as follows:

Ms Britton, it is quite clear that you were one of two young women, and markedly the older of the two, who decided it would be fun to make a malicious fire call.  You allowing your phone to be used, your accomplice then made such a call.  Significant inconvenience followed.

[13]     Counsel for Ms Britton submitted that the Judge overstated Ms Britton’s culpability, assuming too much participation on Ms Britton’s part.   In particular, it was submitted that the Judge must have assumed Ms Britton planned the hoax call with her step-sister and lent her step-sister her phone specifically for that purpose,

when there was no evidence of this.  Counsel submitted that Ms Britton may have lent her step-sister her phone with no knowledge that it was going to be used to make a hoax call, and simply “sat idly by” while her step-sister made the call.

[14]     The  difficulty  with  this  submission  is  that  such  a  minimalist  view  of Ms Britton’s  involvement  is  inconsistent  with  her  guilty  plea.  On  the  scenario advanced by defence counsel, Ms Britton would have no culpability, even as a party. Ms Britton, however, accepted her culpability as a party to the offence.  She pleaded guilty on that basis.   She has therefore accepted that she intentionally aided, encouraged or procured her much younger step sister to make the hoax call, which was made on Ms Britton’s phone. It is also relevant in this context that, upon being found by the police in the carpark, Ms Britton admitted her involvement in the making of the call and “explained that she did this because she was bored and wanted something to do”.  That admission clearly reflects that Ms Britton was not simply an innocent bystander to her step-sister’s hoax call.

[15]     There is accordingly no error by the Judge in his assessment of the level of Ms Britton’s culpability.  He recognised that her role was that of a party rather than the principal  offender.    Given  the disparity in  ages  between  the two  offenders, however, there would have been relatively little difference between the culpability of the principal offender and the party in this case.  Indeed, as the markedly older sister, it is arguable that Ms Britton’s culpability was greater than that of her step-sister.

Was  the  Judge  required  to  take  into  account  the  “plea  bargain”  between

Ms Britton and the police?

[16]     As a result of discussions between the police and counsel for Ms Britton it was agreed that, if Ms Britton pleaded guilty, the police would only seek a sentence of reparation.   The police appear to have honoured that agreement.   The Judge, however,  viewed  reparation  alone  as  an  inadequate  sentencing  response.   He imposed an additional sentence of community work.

[17]     Counsel for Ms Britton submitted that the Judge should have taken  into account the “agreement” reached between the police and Ms Britton as to the appropriate sentence.  In particular, it was submitted that the Criminal Procedure Act

seeks to encourage cooperation between prosecution and defence, with a view to securing the early resolution of appropriate matters.   Counsel for Ms Britton submitted that it is consistent with this statutory purpose for the court to take into account any agreements as to an appropriate sentence reached between prosecution and defence counsel.

[18]     In my view there is no merit in this ground of appeal.   It is not open to counsel  to  agree  an  appropriate sentence  and,  in  effect,  seek  to  have the  court “rubber stamp” that.   The cooperation encouraged by the Criminal Procedure Act does not extend to sentencing outcomes.  The prosecution can, of course, agree to only seek a particular sentencing outcome.  That is what occurred in this case.  The Judge was aware that the police were only seeking a sentence of reparation.   He considered whether that was an adequate sentence in all the circumstances of the case.  He concluded that it was not.

[19]     Sentencing   generally   involves   the   exercise   of   judicial   discretion.5  A sentencing judge is given a broad discretion to apply relevant principles, taken from both legislation and case law, to reach an appropriate end sentence for the individual offender before them. The exercise of the Judge’s sentencing discretion cannot be fettered by pre-hearing negotiations or “agreements” between prosecution and defence.

Was appropriate credit given for Ms Britton’s guilty plea?

[20]     The Judge stated in his Sentencing Notes that:

[2] Thereafter, despite a minor dispute of facts you instead elected to plead not guilty. The case was remanded for a case review hearing which it went through. It was then sent to a defended date for hearing and today is that date. Only now have you acknowledged your guilt. You have to understand that recognition for your remorse will be significantly less tangible today than it would have been if immediately after you had been arrested you got hold of a lawyer and said, “I’ve done a very silly thing. I want to plead guilty”. Very different.

5      Houston v R [2013] NZCA 581 at [8], citing Austin, Nicholas & Co Inc v Stichting Lodestar

[2007] NZSC 103, [2008] 2 NZLR 141.

[21]     Counsel submitted that the Judge gave insufficient credit for Ms Britton’s guilty  plea.  She  submitted  that  the  resolution  of  the  factual  dispute  as  to  who actually made the call was not a “minor dispute of facts” but rather was a major issue in terms of culpability, that justified deferral of a guilty plea.

[22]     The Court of Appeal in R v Hessell said that the date of the “first reasonable opportunity” should not be extended on the basis that the defendant was disputing the prosecution’s summary of facts.6    The correct course was rather to plead guilty and then negotiate for the summary of facts to be amended; if prosecution and defence could not agree, the issue could be the subject of a disputed facts hearing under s 24 of the Sentencing Act.7   However, on appeal to the Supreme Court, it was held that a more nuanced approach should be taken:8

As well, the Court of Appeal’s approach does not allow for a reduction where a plea is entered only after resolution of disputed facts. The Court of Appeal’s expectation is that defendants should plead guilty where their disagreement  with  the  prosecution’s  case  is  not  about  their  guilt  of  the offence but relates to the prosecutor’s statement of facts. This, it is said, should be left to a subsequent disputed facts hearing.  If  at that hearing the sentencing   judge   rejects   the   defendant’s   view   of   the   facts,   the appropriateness of giving a reduction for the plea will be reviewed. The last step is less objectionable. If the circumstances indicate that a defendant is not fully prepared to acknowledge guilt at the outset, that must be factored into the sentence. But the requirement that a defendant must always plead guilty  before  entering  the  disputed  facts  process  to  get  the  maximum discount is too rigid. The better course is to permit sentencing judges to assess the value of the plea in the particular circumstances, without a rigid requirement for application of a scale of discounts dependent on the exact timing of the plea.

[23]     The  sentencing  court,  in  determining  a  discount  for  a  guilty  plea,  must therefore take into account all the circumstances relating to the delay in entering a guilty plea, and whether it appeared that the defendant was willing to acknowledge guilt from the outset.

[24]     In my view it was open to the Judge in this case to conclude that Ms Britton had  not  pleaded  guilty  at  the  earliest  opportunity.    The  factual  dispute  was  a

relatively narrow one that could be readily determined (and ultimately was) simply

6      R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 at [31].

7 At [33].

8      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [61].

by playing the recording of the phone call.  The level of Ms Britton’s culpability in either making the false call herself, or aiding or encouraging her much younger step-sister to make the call (and lending her a phone for that purpose) was fairly similar, as I have noted above.  The issue accordingly did not justify deferral of a guilty plea until the day of the defended hearing.

[25]     In all the circumstances, I am not persuaded that the Judge made an error in assessing the value of Ms Britton’s guilty plea that has materially impacted on the sentencing outcome.

Personal factors

[26]     Finally, Ms Britton submitted that insufficient weight was given to personal factors such as to her youth and that she was willing to pay the cost of the call-out.

[27]     Ms Britton is young and, if this had been her first offence, the imposition of a sentence of community service could arguably have been an excessive sentencing response.  However, she was not a first time offender.  At the time of the offending she was subject to a supervision order of the Youth Court.   Further, the Judge to some extent recognised her personal circumstances by requiring work and living skills to be incorporated into the community work order he made.

[28]     I am not persuaded that the personal factors relating to Ms Britton are such as to render a sentence of community service inappropriate or manifestly excessive.

Conclusion

[29]     I have not been persuaded that the Judge erred, resulting in the imposition of a sentence that was manifestly excessive.   The offence is one which can attract a short  sentence  of  imprisonment  (of up  to  three  months).    This  particular  case involved a full-scale response by emergency services, including both fire and ambulance.

[30]     Although only 17 years old, but Ms Britton was subject to a supervision order at the time of this offence.  This related to a number of dishonesty offences, such as burglary, admitted in the Youth Court.  Part of Ms Britton’s community work will relate to basic work and living skills.  The sentence imposed was, in my view, within the appropriate range.

Result

[31]     The appeal is dismissed.

Katz J