Brown v Police
[2018] NZHC 1643
•5 July 2018
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHECRI-2018-419-25 [2018] NZHC 1643
IN THE MATTER OF An appeal against sentence pursuant to section 244 of the Criminal Procedure Act 2011 BETWEEN
JAMES GEORGE REGINALD BROWN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 July 2018 Appearances:
J Tarrant for Appellant
M L Dillon for Respondent
Judgment:
5 July 2018
ORAL JUDGMENT OF POWELL J
[Appeal against Sentence]
Counsel:
R G Douch, Crown Solicitor, Hamilton J Tarrant, Barrister, Hamilton
BROWN v NEW ZEALAND POLICE [2018] NZHC 1643 [5 July 2018]
Introduction
[1] James Brown has been sentenced to a total of seven and a half months’ imprisonment for driving offences.1 He has also been disqualified from holding or obtaining a driver’s licence for 24 months.
[2] He appeals on the basis that the sentence imposed was manifestly excessive. Because in this case the Crown concedes that there were errors in the sentence that has been imposed, the primary question on appeal is whether a different sentence should be imposed if the end sentence was manifestly excessive.
Background
[3] The summary of facts to which Mr Brown pleaded guilty discloses that on Tuesday 20 March 2018 at approximately 11.35 am Mr Brown was driving his motor vehicle through Te Awamutu at an excessive speed; in particular a Police patrol obtained a radar speed check that confirmed that he was travelling at 123 km/h in a 50 km/h residential speed limit along Cambridge Road in Te Awamutu. Police activated blue red lights and sirens, and indicated for Mr Brown to stop.
[4] Rather than stopping Mr Brown increased his speed in order to flee. The resulting pursuit lasted for approximately 23 minutes. For the duration of the pursuit Mr Brown drove throughout the highly populated central business district of Te Awamutu reaching speeds of up to 85 km/h. He failed to stop at stop signs and failed to give way at multiple intersections. He drove up the wrong side of a road, and drove around a roundabout the wrong way. Because the pursuit continued for so long local schools engaged lock-down procedures to protect children’s safety. A large number of onlookers witnessed the pursuit and fortunately assisted Police in clearing the roads of traffic and pedestrians.
[5] As the pursuit unfolded Mr Brown collided with an unmarked Police vehicle and continued to flee despite the rear bumper hanging off his car and being dragged
1 Police v Brown [2018] NZDC 9322.
behind on the road surface. In addition he drove recklessly through the carparks of the Warehouse, McDonalds and the Event Centre in Te Awamutu where it was altogether likely that children and families could have been present.
[6] The Police ultimately deployed tyre deflating devices and while Mr Brown’s left front and rear tyres of his car did deflate he nonetheless continued to attempt to evade Police. Eventually the pursuit came to a conclusion only when Mr Brown’s vehicle collided with a parked motor vehicle in Teasdale Street, Te Awamutu and stopped.
[7] At that point Mr Brown left the vehicle on foot and was apprehended a short time later. A search of Mr Brown’s vehicle subsequently discovered a hunting knife in the centre console.
[8] By any standards Mr Brown’s behaviour and standard of driving was appalling. He subsequently pleaded guilty to four charges under the Land Transport Act 1998 and a further Crimes Act 1961 offence. Those offences were:
(a)failing to stop for blue and red flashing lights (third or subsequent);2
(b)operating a motor vehicle on a road recklessly;3
(c)failing to stop while operating a vehicle in a dangerous manner;4
(d)driving a motor vehicle at a dangerous speed;5 and
(e)possession of an offensive weapon.6
2 Section 52A(1)(a)(ii). The maximum penalty is a fine of $10,000, or a term of imprisonment of three months, as well as disqualification for two years.
3 Land Transport Act 1998, s 35(1)(a). The maximum penalty is three months’ imprisonment or a fine of $4,500, as well as disqualification from holding or obtaining a driver licence for six months or more.
4 Section 52A(1)(a)(i). The maximum penalty is a fine of $10,000, as well as disqualification for a period of six months.
5 Section 35(1)(b). The maximum penalty is three months’ imprisonment or a fine of $4,500, as well as disqualification from holding or obtaining a driver licence for six months or more.
6 Crimes Act 1961, s 202A(4)(a). The maximum penalty is three years’ imprisonment.
[9] This was not the first time that Mr Brown had come before the Court on this type of offence and he has a history of similar offending. In 2010, he was convicted of driving dangerously causing death or injury. In 2011, he was convicted of reckless driving. He was convicted of dangerous driving, reckless driving, driving and failing to stop for lights and sirens in 2014, and in 2015 he was convicted of dangerous driving, failing to stop and driving while disqualified, as well as breach of release conditions. As the sentencing Judge, Judge Wilson QC noted, Mr Brown’s previous history was “one of the most concerning of recidivist bad driving that [he] had ever seen.”
District Court decision
[10] Given the Crown’s concession that there has been an error in the sentence it is not necessary to spend much time considering Judge Wilson’s sentencing decision.
[11] His Honour accepted the Crown’s submission that the charge relating to the knife was the least important, and consequently convicted and discharged Mr Brown on that charge.
[12] In terms of the remaining driving charges, his Honour noted the maximum penalty for the reckless and dangerous driving charges under s 35 of the Land Transport Act was three months. His Honour noted Mr Brown’s high risk of harm and of reoffending and, because of Mr Brown’s offending history, imposed cumulative sentences of three months’ imprisonment, that is the maximum available on each charge.
[13] He then uplifted the sentence by a further three months due to Mr Brown’s previous history, arriving at a starting point of nine months’ imprisonment. A 25 per cent guilty plea discount was then applied, taking the end sentence to six and a half months’ imprisonment.
[14] His Honour also disqualified Mr Brown from holding a licence for a period of 24 months, which comprised of an 18 month disqualification for the s 35 offences, and a six month disqualification for the failure to stop.
Subsequent events
[15] There the sentencing notes end. However following the sentencing Ms Tarrant, for Mr Brown, advises she realised in sentencing Mr Brown to a term of six and a half months’ imprisonment, the Judge exceeded the maximum penalty for the two s 35 offences referred to in the sentencing notes.
[16] She consequently sought for the matter to be recalled. His Honour declined the applicant and Ms Tarrant was subsequently advised by the Registrar that the Judge had amended the sentence to one of seven and a half months’ imprisonment to reflect the separate failing to stop for the flashing blue and red lights.
Appellate principles
[17] This is a first appeal against sentence. Section 250(2) of the Criminal Procedure Act 2011 (“CPA”) provides the appeal must be allowed if the court is satisfied that for any reason there is an error in the sentence imposed, a different sentence should be imposed.7
[18] The touchstone is whether the sentence imposed is manifestly excessive,8 with the focus on the sentence imposed, rather than the process by which it was reached.9 Where the sentence is within a range that can properly be justified by accepting sentencing principles, the appellate court will not disturb the sentence imposed.10
The Position of the Parties
[19]On behalf of Mr Brown, Ms Tarrant has identified two issues:
(a)First, she described something of a “comedy of errors” that it appears that she and Judge Wilson seemed to be talking past one another given Ms Tarrant was unaware of the fifth charge and believed that Mr Brown
7 Criminal Procedure Act 2011, s 250(2).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].
9 At [36].
10 Larkin v Ministry of Social Development [1015] NZHC 680.
was only being sentenced on four charges, with only two of them being traffic charges to which a sentence of imprisonment applied;
(b)From that starting point Ms Tarrant considers that it was unfair that the end sentence was increased by one month without the opportunity to make submissions on the sentence and without the sentencing Judge providing reasons.
[20] Taking these matters into consideration it was Ms Tarrant’s submission that an end sentence of six and a half months appropriately reflected the totality of Mr Brown’s offending on 20 March 2018 as well as his previous history.
[21] I accept Ms Tarrant was genuinely unclear as to the position but Mr Dillon for the Crown has provided an updating memorandum which confirms that in fact Mr Brown had pleaded guilty to all five charges and the sentencing before Judge Wilson was indeed intended to address those five charges.
[22] Despite this Mr Dillon rightly concedes there is confusion as to the final sentence imposed, and it is appropriate for the matter to be considered afresh in this Court. The central thrust of Mr Dillon’s submission was, notwithstanding the error, the sentence apparently imposed was nonetheless not manifestly excessive and therefore the appeal should not be allowed.
Assessment
[23] As a matter of first principles, when judges are sentencing for multiple offences:11
(a)the sentence must reflect the totality of the offending;
(b)appellate courts will not insist that the total sentence is arrived at in a particular way; but
11 R v Xie [2007] 2 NZLR 240 (CA) at [17], citing R v Barker CA 57/01, 30 July 2001 at [10].
(c)the total sentence must represent the overall criminality of the offending and the offender.
[24] Sections 84 and 85 of the Sentencing Act 2002 provide guidance on when concurrent and cumulative sentences are “generally appropriate”, but they do not trump the “central principle of sentencing for multiple offending”, that the total sentence must represent the overall criminality of the offending and the offender.12
[25] The guidance afforded by s 84 indicates in this case concurrent sentences would have been more appropriate, because the offences are of a similar kind and part of a connected series of offences. But where the total sentence appropriate for the totality of the offending exceeds the maximum penalty for any one offence, cumulative sentencing must be used.13 That is the approach the Judge took in this case and one that Mr Dillon endorses.
[26] Mr Dillon submits the three driving offences which carry maximum penalties of imprisonment were sufficiently serious that a sentence of more than three months’ imprisonment was required. He points out the maximum term of imprisonment available was nine months’ (excluding the offensive weapon charge).
[27] Mr Dillon underlines that the Court must impose a penalty near the maximum prescribed for the offence if the offending is near to the most serious of cases for which the penalty is prescribed, unless the circumstances relating to the offending make that inappropriate,14 and in support of that submission refers to the decision of Heath J in Wilson v Police. Applying the Wilson decision Mr Dillon submits Mr Brown is a recidivist offender, and endorsed Judge Wilson’s description of Mr Brown’s record as “one of the most concerning [records] of recidivist bad driving” he had seen. Accordingly he submits a sentence close to the maximum is appropriate.
[28] Approached another way, Mr Dillon submits the sentence could comprise the following elements in order to retain the end sentence that Judge Wilson ultimately arrived at:
12 At [18].
13 At [19].
14 Sentencing Act 2002, s 8(c).
(a)first a cumulative starting points of two months for each of the three driving offences carrying terms of imprisonment, producing an overall starting point of six months;
(b)a two month uplift for Mr Brown’s driving history;
(c)a further two month uplift for possession of the offensive weapon; and
(d)applying a 25 per cent discount for Mr Brown’s guilty plea, this would take the end sentence to seven a half months’ imprisonment.
[29] The problem with this approach, as I have discussed with Mr Dillon, is that whichever way the calculation is approached the end sentence reached by Judge Wilson can only be justified by sentencing Mr Brown to imprisonment on the offensive weapon charge which Judge Wilson had specifically concluded was not a significant component of the offending, and which was appropriately dealt with by way of conviction and discharge. Having considered Judge Wilson’s reasons for taking that approach on the offensive weapon charge I see no reason to disagree with that approach.
[30] As a result if no change is made to the offensive weapon sentence the maximum term of imprisonment available to Judge Wilson was nine months which, after deducting the 25 per cent that Judge Wilson accepted was appropriate for Mr Brown’s guilty plea, would have resulted in an end sentence of six and three quarter months’ imprisonment. The sentence imposed on Mr Brown was therefore significantly greater than the maximum that could have been imposed in the circumstances, and thereby manifestly excessive. The question then turns to whether the maximum period of imprisonment is appropriate for each of the imprisonable traffic charges and if not what sentence should have been imposed on Mr Brown?
[31]In considering the issue of maximum sentences I bear in mind the decision in
Foulds v Police, where Laurenson J allowed an appeal against a sentence of three
months’ imprisonment for a single charge of dangerous driving where the defendant had a background of prior convictions. Laurenson J concluded:15
As I have said, this was a bad case of dangerous driving and there is the background of previous convictions. Despite this I consider that to impose the maximum sentence in even these circumstances cannot be said to be correct in principle for the simple reason that by doing so there is no room left to recognise worse cases. I accordingly find that the appeal as to sentence should be allowed.
[32] In this case I note that to get to the maximum on the reckless and dangerous charges Judge Wilson referred to Mr Brown’s previous history which was then counted again in Judge Wilson’s calculation of an uplift on those same charges.16
[33] Given those issues I consider the following approach to better reflect the totality of the offending and in particular, not only the appalling driving of Mr Brown on 20 March 2018 but also his previous appalling driving record as well as taking into account the purposes and principles of the Sentencing Act 2002 that are applicable in this case.
[34] First, as I have already noted, there is no basis to alter Judge Wilson’s conclusions with regard to the possession of offensive weapon charge and I confirm that Mr Brown is convicted and discharged on that charge.
[35] Secondly, on the three traffic charges carrying terms of imprisonment, two months imprisonment is appropriate on each of those charges, to be served cumulatively. I note in particular the failure to stop for blue and red flashing lights that was not specifically considered by Judge Wilson was a significant charge in the context of Mr Brown’s offending. Put simply it was the precursor to everything that followed. Had Mr Brown stopped when required to do so the resulting pursuit would not have been necessary nor indeed the resulting inconvenience, damage to property and potential safety risk to the Te Awamutu community.
[36] Thirdly, I consider that a significant uplift is appropriate for Mr Brown’s previous history. That uplift is two and a half months. It is apparent that given
15 Foulds v Police HC Auckland A32/99, 24 March 1999 at 4.
16 See [12] and [13] above.
Mr Brown’s history and the events of 20 March 2018 he is indeed getting close to the maximum seriousness for the offences for which he was charged and as a result it does take him close to the maximum penalty. Adding these together I come to a starting point of eight and half months’ imprisonment, which after deducting 25 per cent for Mr Brown’s guilty plea as considered appropriate by Judge Wilson, and rounding the resulting figure I come to an end sentence of six and half months’ imprisonment.
[37] As will be apparent this is a significantly different end sentence and therefore conclude the sentence previously imposed was manifestly excessive.
Result
[38] The appeal is therefore allowed and the sentence imposed in the District Court is replaced and substituted by a term of six and half months’ imprisonment. There was no challenge to the period of disqualification imposed by Judge Wilson and I confirm that part of Mr Brown’s sentence.
Powell J
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