Brown v Police

[2021] NZHC 2801

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-440 [2021] NZHC 2801

BETWEEN

DARION XAVIER BROWN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	19 October 2021 (via AVL)
Counsel:	G B Morison for Appellant P R McNabb for Respondent
Judgment:	19 October 2021

JUDGMENT OF BREWER J

Solicitors/Counsel:

Gregor Morrison (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

BROWN v POLICE [2021] NZHC 2801 [19 October 2021]

Introduction

[1]      On 7 September 2021, Mr Brown was sentenced by Judge A-M Skellern on one charge of being unlawfully in a building1 and one charge of possession of a pipe for smoking  methamphetamine.2     The sentence  was  six  months’ imprisonment.3

Mr Brown appeals the sentence on the basis that it is manifestly excessive.

[2]      My task is to decide whether there is an error in the sentence such that a different sentence should be imposed.  If the sentence is manifestly excessive then it must be corrected.

Judge Skellern’s sentence

[3]      Mr Brown presented to Judge Skellern as a 27 year old with 59 previous convictions.  He had served multiple sentences of imprisonment.  He was being held in custody because he had breached his EM bail.

[4]      The Judge was also aware that Mr Brown was addicted to methamphetamine and this was the driver of Mr Brown’s offending.

[5]      The factual background to the offending was straightforward.  On 20 March

2021, at about 5 am, Mr Brown climbed on to a private balcony attached to an apartment in a complex of apartments. Mr Brown used a potted plant to break a large window, thus gaining entry to the apartment.  Mr Brown was cut by the broken glass and left a considerable amount of his blood inside the apartment.  He left through the front door.

[6]      Subsequently, Mr Brown was identified as the person who had left the blood in the apartment.  On 27 May 2021, the police arrested Mr Brown and found on his

person a glass pipe of the sort used to consume methamphetamine.

1      Summary Offences Act 1981, s 29(1)(a): maximum penalty of three months’ imprisonment or a

$2,000 fine.

2      Misuse of Drugs Act 1975, s 13(1)(a) and (3): maximum penalty of one year imprisonment or a fine of $500 or both.

3      Police v Brown [2021] NZDC 19070.

[7]      Judge Skellern took the charge of possessing the methamphetamine pipe as the lead charge. She adopted a start point of four months’ imprisonment. The Judge then added two months for the charge of being unlawfully in a building and a further two months to account for Mr Brown’s criminal record.  The Judge discounted the start point of eight months’ imprisonment by 25 per cent because Mr Brown had pleaded guilty to the charges. That resulted in the end sentence of six months’ imprisonment.

The appeal

[8]      Mr Morison has identified a number of areas where he submits the Judge erred. But, first, he wants me to have regard to a report pursuant to s 27 of the Sentencing Act 2002 prepared by Ms Jane Taylor.  This report was not before Judge Skellern.  It had been prepared for a sentencing on other charges which took place in March 2021.

Mr Morison, who did  not represent Mr Brown at that time, was unaware of its existence. Ms McNabb, responsibly, does not oppose me receiving the report. It is in the interests of justice for me to do so, and so I will.

[9]      In essence, Mr Morison submits:

(a)      The start point of four months’ imprisonment for possession of the methamphetamine pipe was not explained by the Judge and is too high.

(b)Adding two months for the charge of being unlawfully in a building was excessive.   The maximum penalty is only three months’ imprisonment.

(c)      The uplift of two months as a response to Mr Brown’s criminal record was disproportionate and excessive.

(d)The Judge should have given a discount for the acknowledged fact that the offending was driven by methamphetamine addiction.

(e)      A discrete discount is available because of the material described in the s 27 report.

(f)       The Judge should have given a discount for the 25 days spent on EM

bail on restrictive conditions.

[10]     Ms McNabb for the respondent supports the sentence. Ms McNabb points out that it is the end sentence which must be focused on and, she submits, an end sentence of six months’ imprisonment was stern, but within the range available to the Judge.

Discussion

[11]     In my view, the more serious offending was Mr Brown unlawfully entering into the building.  This was a private home and, since entry occurred around 5 am, there was a real risk of confrontation.  In order to unlawfully gain entry, Mr Brown broke through a large window and further damage was occasioned by him bleeding profusely in the apartment.

[12]     A sentence of two months’ imprisonment on this charge, on first principles, is within range.

[13]     On the other hand, the sentence of four months’ imprisonment for possession of the methamphetamine pipe is excessive.  Section 13(3) of the Misuse of Drugs Act

1975 does not mandate a sentence of imprisonment for possessing a methamphetamine pipe. A fine not exceeding $500 is a specified alternative to imprisonment. There are no aggravating factors in relation to this charge.   Mr Brown was an addict who possessed a pipe.  In my view, on first principles, a sentence of no more than one month imprisonment was justified given that Mr Brown could not pay a fine and because his previous convictions would necessitate an uplift.

[14]     There had to be an uplift for Mr Brown’s significant and relevant criminal history. I have assessed a starting point of three months’ imprisonment on the charges themselves and, to be proportionate, an uplift of no more than one month is justified. On my analysis, that brings the overall starting point to four months’ imprisonment.

[15]     The s 27 report speaks eloquently of Mr Brown’s upbringing.  It was almost entirely dysfunctional.  From his earliest years, Mr Brown was neglected, abused and immersed  in  the  culture  of  drugs.    I  assess  a  causal  nexus;  an  inevitability  of

Mr Brown’s upbringing leading him to drug-related offending. A discount of five per cent is available.

[16]     I agree with Mr Morison that there should be a further discount for Mr Brown’s addiction being the driver of his offending.  In some cases, very significant discounts can be given.  In this case, given Mr Brown’s history of offending, being treated for his addiction and relapsing, I consider a discount of 10 per cent is appropriate.

[17]     Ordinarily, a Judge would allow a discount for time spent subject to restrictive EM bail conditions.  But it is not an automatic discount.  Here, Mr Brown breached his EM bail.  On balance, I will not allow a discount.

[18]     The discount of 25 per cent for the pleas of guilty is appropriate.

[19]     I find, therefore, that the starting point of four months’ imprisonment assessed by me should be reduced by 40 per cent.  I will take that as an end sentence of two months and two weeks’ imprisonment.

[20]     It follows that the end sentence of six months’ imprisonment imposed in the

District Court is manifestly excessive and must be corrected.

Decision

[21]     The appeal is allowed. The sentences are quashed.

[22]     On the charge of being unlawfully in a building, I substitute a sentence of two months and two weeks’ imprisonment.   On the charge of possession of a pipe, I substitute a sentence of one month imprisonment.

[23]     The sentences are to be served concurrently.

Brewer J