Brown v Police

[2017] NZHC 2837

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2017-441-30 [2017] NZHC 2837

BETWEEN

ASHLEY WILLIAM BROWN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	1 November 2017
Appearances:	C J Tennet for the Appellant C R Stuart for the Respondent
Judgment:	17 November 2017

JUDGMENT OF CULL J

[1]      Mr Brown pleaded guilty to four charges: causing grievous bodily harm with intent to injure,1 dangerous driving,2 driving with excess breath alcohol,3 and breach of  a  community  work  order.4      On  8  September  2017,  Judge Adeane  sentenced

Mr Brown to 13 months’ imprisonment with six months of release conditions and disqualified him from driving for six months.5

[2]      Mr Brown appeals his sentence on the basis that the starting point was too high, that the Judge should have warned Mr Brown he was considering a sentence of

1      Crimes Act 1961, s 188(2). Maximum penalty is seven years’ imprisonment.

2      Land Transport Act 1998, s 35(1)(b). Maximum penalty is three months’ imprisonment, or a fine not exceeding $4,500, and disqualification from holding or obtaining a driver licence for six

months.

3      Section 56(1). Maximum penalty is three months’ imprisonment, or a fine not exceeding $4,500, and                 disqualification from holding or obtaining a driver licence for six months.

4      Sentencing Act 2002, s 71(1)(f).  Maximum penalty is three months’ imprisonment or a fine not exceeding $1,000.

5      New Zealand Police v Brown [2017] NZDC 20389.

BROWN v NEW ZEALAND POLICE [2017] NZHC 2837 [17 November 2017]

imprisonment, and that home detention, rather than imprisonment, was the appropriate sentencing outcome.

[3]      The Crown opposes the appeal and argues the starting point was within the available range and the discounts applied were generous.   Home detention was inappropriate in the circumstances because of the seriousness of the offending, the appellant’s failure to comply with community-based sentences, and his previous convictions.

Factual background

[4]      The charge of causing grievous bodily harm with intent to injure arose from an incident on 11 June 2017.  Mr Brown was at a family event with his then girlfriend, the victim, who was a very small and slightly built woman.  Both Mr Brown and the victim were drinking during the evening and became moderately intoxicated.

[5]      At about 11 pm, the victim’s older sister sent the victim to bed and Mr Brown followed soon after. Once in bed, Mr Brown began touching the victim in an intimate manner but the victim was not interested and told him she just wanted to go to sleep. Mr Brown became angry and shoved her on her shoulder saying “what bitch, what the fuck did you say?” The victim responded by slapping Mr Brown in the face and told him not to push her.  Mr Brown put the victim’s arm up behind her back and she bit him to get him to let go. Mr Brown then punched the victim once in the face, striking her left eye.

[6]      As a result of the punch, the victim suffered extensive swelling and bruising to her left eye.  Her orbital floor was fractured and her nose broken. A nerve in the left side of her face was crushed, leaving the left side of her face completely numb.  She requires further treatment with a specialist to determine if surgery is required to repair her eye socket.

[7]      The  two  driving-related  charges  arose  from  events  on  13  April  2017.

Mr Brown  was  driving  during  a  severe  storm  and  overtook  another  vehicle  at approximately 120 kph.  He drove up to an intersection but was travelling too fast to stop and skidded through the intersection, crashing into a large ditch on the other side.

A breath  test  was  conducted  and  Mr  Brown  returned  a  positive  result  of  661 micrograms of alcohol per litre of breath, which was over one and a half times the legal limit.  At the time of the crash, Mr Brown did not hold a New Zealand driver’s licence and had two passengers in the vehicle.

[8]      The final charge of breaching a community work order occurred on 26 May

2017.  Mr Brown had previously been sentenced to 100 hours of community work on

8 March 2017, following a conviction on charges of speaking threateningly, wilful damage, resisting police and assaulting police.  On 26 May 2017, Mr Brown failed, without  reasonable  excuse,  to  report  to  the Napier Community Work  Centre as instructed as part of his community sentence.

[9]      Mr Brown is 24 years of age.  He has 11 previous convictions, including one charge of male assaults female and one charge of assaulting a police officer.

District Court decision

[10]     Judge Adeane described the lead charge as follows:6

… Mr Brown and his sometime domestic partner were involved in a drinking session.   She went to bed.   She is described as, “a conspicuously small individual.”  Mr Brown followed her.  An argument arose about nothing.  It ended up with Mr Brown punching her once after she had apparently bitten him in response to some provocation he had offered.

[11]     He then highlighted that Mr Brown caused significant harm and damage to the victim when punching her.   The Judge categorised the driving charges as “unexceptional” and the breach of a community work order as “simply non- compliance of a kind with which the Court is well and truly familiar.”7

[12]     The Judge adopted a starting point of 18 months’ imprisonment for the lead charge of causing grievous bodily harm as “[v]ery serious harm was done to a physically much smaller individual”.8  This starting point was reduced by five months’

imprisonment (equivalent to 27 per cent) to recognise Mr Brown’s guilty plea. An end

6 At [2].

7 At [4].

8 At [5].

sentence of 13 months’ imprisonment with six months of release conditions (including non-association with the victim) was imposed.

[13]     The Judge concurrently sentenced Mr Brown to one month’s imprisonment and six months’ disqualification from driving for each of the two driving charges. For the breach of community work charge, the Judge convicted and discharged Mr Brown.

[14]     The Judge held that home detention was not appropriate or permissible in the present case. The Judge commented that it was a case involving grievous bodily harm and “offending of that kind will rarely be sufficiently denounced by an electronically monitored sentence.”9

Approach to appeal

[15]     This appeal is brought under s 250 of the Criminal Procedure Act 2011.  An appeal against sentence is an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.10   The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.11

Mr Brown’s position

[16]    First, Mr Tennet, counsel for Mr Brown submits the starting point was manifestly excessive, even allowing for the full guilty plea discount that was given. He says the Judge did not rely on the tariff case of Nuku v R and did not identify the relevant  aggravating  factors  or  carry  out  the  sentencing  exercise  as  required.12

Counsel submits the only relevant aggravating factor was an attack to the head. There was no premeditation and the charge itself is serious, but that cannot be an aggravating feature. Counsel places the offending in band one of Nuku and submits a starting point

of six to nine months’ imprisonment was appropriate.  As the Judge appears to have

9 At [7].

10     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

11     Ripia v R [2011] NZCA 101 at [15].

12     Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

placed it over half way in band two, counsel submits this was an error and the sentence imposed was manifestly excessive.

[17]     Second, given the reports and counsel’s submissions, Mr Tennet says the Judge should have warned counsel at or before the sentencing that he was only considering a sentence of imprisonment.  Counsel submits the Judge should have given such a warning to allow further submissions on home detention and for Mr Brown to prepare himself for the likelihood of prison.  Counsel submits this is an issue of fairness and draws an analogy with the case of Rossan v New Zealand Police.13   Counsel submits this was a case of trial by ambush that was unfair to Mr Brown.  Simply because

Mr Brown pleaded guilty and did not request a sentencing indication does not mean he should be penalised.  Mr Tennet submits that as the Judge erred, this Court should impose a different sentence based on the material in front of it.

[18]     Finally, Mr Tennet submits the Judge was wrong in fact and law in not imposing a sentence of home detention.   There is no presumption against home detention for this type of case, as the Judge implied there was.  Further, the interests of justice are served by Mr Brown having a sentence of home detention and continuing with the rehabilitative part of the sentence. As the Judge did not weigh up any of the factors, it is open to the Court to consider home detention.

[19]     Counsel submits a short sentence of home detention should have been imposed. However, because Mr Brown has already served approximately two months in prison, he submits a sentence of intensive supervision combined with community work may now be appropriate to deal with Mr Brown’s alcohol treatment needs.14

Crown’s position

[20]     The Crown opposes the appeal on the basis that the sentence was appropriate in the circumstances.

[21]     The Crown submits the starting point was within the available range and the discounts applied were generous.  The Crown provides a number of cases in support

13     Rossan v New Zealand Police HC Napier CRI-2005-441-17, 19 May 2005.

14     R v Reid HC Wellington CRI-2009-085-8992, 21 November 2011.

of this submission.15  The Crown highlights the presence of three aggravating factors: vulnerability of the victim, an attack to the head and serious injury. The incident was a rapid escalation of violence. The Crown submits the offending falls within band two of Nuku and a starting point of 18 months’ imprisonment was generous.

[22]   The Crown also submits the discounts applied were generous in the circumstances, as the Judge gave a discount of almost 28 per cent for Mr Brown’s guilty plea, compared to the maximum discount of 25 per cent discussed in Hessell v R.16   Little recognition, the Crown says, should be given to Mr Brown’s attempts to seek treatment for alcohol abuse, participate in restorative justice and express remorse prior to sentencing. The Crown points to Mr Brown’s failure to attend supervision for alcohol treatment on several occasions; Mr Brown’s disrespectful behaviour to the victim’s mother during restorative justice attempts when she suggested he needed help; and Mr Brown’s attempt to minimise his offending and transfer blame to the victim for biting him.

[23]     Further, the Crown submits that a sentence of imprisonment was always a live option and there was no trial by ambush as suggested by Mr Brown. The pre-sentence report, dated 5 September 2017, commented that Mr Brown was aware that imprisonment would be considered at sentencing and was offered as an option.

Starting point

[24]     The Court of Appeal case of Nuku provides guidance on how the tariff case of R v Taueki should be adapted to apply to offending that involves charges of intent to injure.17  The judgment adopts the aggravating factors from Taueki18 to establish three

bands and corresponding starting points:19

15     Karawana v R [2013] NZCA 516; Maihi v R [2016] NZCA 205; R v Ponga [2014] NZHC 677; King v Police HC Christchurch CRI-2008-409-44, 17 April 2008; and Hetherington v Police [2015] NZHC 1829.

16     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

17     Nuku, above n 12; and R v Taueki [2005] 3 NZLR 372 (CA).

18     Taueki, above n 17, at [31].

19     Nuku, above n 12, at [37]–[43].

(a)      band one: a sentence of less than imprisonment is available where there are few aggravating features, the level of violence is relatively low and perhaps a less serious charge may have been appropriate;

(b)band  two:  a  starting  point  of  up  to  three  years’ imprisonment  is appropriate where three or fewer aggravating factors are present; and

(c)      band three: a starting point of two years’ imprisonment up to the statutory maximum is available where there are three or more aggravating features and the combination of those is particularly serious.

[25]     The relevant aggravating factors from Taueki, applicable to Mr Brown, are that he attacked the victim’s head; and that the victim was vulnerable, both because of her considerably smaller size compared to Mr Brown, and because she was already in bed, intoxicated and wanting to sleep.

[26]     There is another element to this offending, which I consider to be the most relevant of all, but which was not raised before the Judge or mentioned by him.  As noted above, the victim went to bed and then rejected Mr Brown’s sexual advances. He became angry and attacked her.

[27]     Mr Brown’s violent response to the victim’s rejection of his sexual overtures is of grave concern.  When a woman says “no” to sexual advances, her refusal must be accepted and she must not be subjected to violence.  I consider that this aspect of the offending, combined with the two aggravating factors of an attack to the head and the victim’s vulnerability, places this offending in band two of Nuku.20

[28]     There are two cases which are also relevant.  In R v Ponga, the co-defendant,

Mr Tapueluelu, was convicted of causing grievous bodily harm with intent to injure.21

He punched the victim in a fight, which was described as an uneven contest.  The victim’s jaw broke in three places and he required stitches, metal plates and braces for

his teeth. Peters J adopted a starting point of two years and two months’ imprisonment.

20     Nuku, above n 12.

21     Ponga, above n 15.

[29]     In King v Police, a similar approach was adopted by Fogarty J, in a domestic violence setting.  Mr King was convicted of causing grievous bodily harm with intent to injure.22   Mr King was intoxicated and punched his partner with sufficient force to fracture her eye socket, cut her lip, bruise her nose and cause a concussion.   The sentencing Judge noted the assault in this case took place in a domestic violence setting, the severity of the victim’s injuries and Mr King’s three previous convictions for assault.  A starting point of two years and six months was adopted and upheld on appeal.  Home detention was declined.

[30]     In light of these authorities and the seriousness of Mr Brown’s offending, I do not consider the Judge was in error by fixing a starting point of 18 months.  This was appropriate and, in the circumstances, lenient.

[31]     Further, the discount of five months given for Mr Brown’s guilty plea was generous.   Although this equated to nearly 28 per cent, it is clear the Judge was rounding this up from the 25 per cent maximum discussed in Hessell.  A precise 25 per cent discount would have resulted in a sentence of 13 and a half months.

Failure to warn about sentence of imprisonment

[32]     From the Crown’s submissions, it appears that both Mr Brown and his counsel were aware that a sentence of imprisonment was possible at sentencing.23    Clearly defence counsel at sentencing addressed why a sentence of imprisonment was sufficiently mitigated in Mr Brown’s case, such that it was appropriate to impose a sentence of home detention. There was therefore no error on the part of the Judge. Mr Tennet’s submissions provide no clear authority that there is an obligation on the part of the Judge to warn that a sentence of imprisonment was being considered.

[33]     I do not consider the case of Rossan, relied on by Mr Tennet, is analogous to Mr Brown’s circumstances.  In that case, Miller J set aside a sentence of 16 months’ imprisonment for charges of cultivation and possession of cannabis and substituted a sentence of nine months’ imprisonment. However, Miller J allowed the appeal on the

grounds of disparity, as Mr Rossan’s sentence was excessive having regard to the

22     King, above n 15.

23     Unfortunately, neither the 5 September PAC report nor counsel’s sentencing submissions have been provided.

sentence of nine months’ imprisonment that was imposed by the same Judge on the same day for similar charges by a different offender. This case is not analogous to Mr Brown’s.

Home detention

[34]     The Judge declined to impose home detention in this case, noting that it was not appropriate. The Judge made the further comment that Mr Brown’s case involved grievous bodily harm and that offending of this kind will rarely be sufficiently denounced by an electronically monitored sentence.  Whilst I consider that the latter part of the Judge’s comment was an overstatement, as there will be cases where an electronically monitored sentence may well be justified and although his reasoning was very brief, I agree with the Judge’s conclusion in this case, because of the seriousness of the offending here and the aggravating features surrounding it.

[35]     I note that the PAC report writer notes that Mr Brown has recognised how alcohol is a cause of his offending and appears genuine in accepting he needs to address this, as it is spiralling “out of control”. He was in the process of trying to enter a residential rehabilitation programme at that time.

[36]     I do not consider the Judge erred in determining not to impose home detention in the circumstances.   The offending was serious and it was within the Judge’s discretion to conclude that Mr Brown’s pattern of previous convictions, for alcohol- fuelled violence and breaching court orders, made him an unsuitable candidate for home detention.

[37]     However, more pertinent to this offending, this serious assault arose in the context of a domestic relationship, where the victim had rejected Mr Brown’s sexual advances and effectively said “no.”  As Fogarty J said in King v Police, offending which causes grievous bodily harm in a domestic violence setting justifies a sentence that sets an example and denounces such conduct and the case for a custodial sentence is even stronger here.24   The victim was overpowered and sustained a brutal assault for rejecting her partner’s sexual advances.   As in  King, I consider the goal of

denouncing such conduct would not be achieved by a sentence of home detention.

24     King, above n 15, at [11].

Conclusion

[38]     The appeal is dismissed.

Cull J

Solicitors:

Crown Solicitors Office, Napier