Brownlee v Police

[2018] NZCA 217

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA140/2018
 [2018] NZCA 217

BETWEEN	MISHAQ FENDAR CYPRESS ARCHIE BROWNLEE Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Brown, Duffy and Katz JJ
Counsel:	C Muston for Applicant K Peirse-O’Byrne for Respondent
Judgment: (On the papers)	26 June 2018 at 12.30 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

1. Following a Judge alone trial in the District Court at Whangarei Mr Brownlee was convicted of one charge of injuring with intent to injure and was sentenced to two years and two months’ imprisonment.[1]  He received a concurrent sentence of six months’ imprisonment in respect of a charge of assault with intent to injure to which he had earlier pleaded guilty.  His appeal to the High Court was dismissed.[2]

   [1]New Zealand Police v Brownlee [2017] NZDC 27833.

   [2]Brownlee v New Zealand Police [2018] NZHC 215.

2. He now seeks leave to appeal to this Court against the sentence of two years and two months’ imprisonment.  The basis of his proposed appeal is that in calculating the sentence the District Court Judge made an arithmetical error with the consequence that his sentence should have been two years instead of two years two months’ imprisonment.

The District Court sentence

1. The final sentence of two years two months’ imprisonment was calculated in this way.  First, a starting point for the injuring with intent to injure offending was taken of two years and six months’ imprisonment.  A three-month deduction was allowed to take into account provocation.

2. Next a starting point for the assault with intent to injure charge was taken of 14 months’ imprisonment.  Again a three-month deduction was allowed for provocation.  Thus a combined starting point of 38 months’ imprisonment was reached.

3. The following discounts were then to be applied to that starting point:

   ·     four months for Mr Brownlee’s youth;

   ·     two months for remorse;

   ·     two months to reflect participation in rehabilitation courses and rehabilitation generally;

   ·     four months for pleading guilty to the assault with intent to injure charge.

4. Although the sum of those deductions would result in a final sentence of 26 months, the Judge erroneously calculated a figure of 28 months.[3]  He then concluded as follows:[4]

   I am prepared from that initial end sentence of two years and four months that I have made reference to, to reduce the sentence further to take into account the totality of the offending by a further two months, but in my view, as I have signalled, Mr Brownlee, the only sentencing option available to the Court today, given the nature of the offending and the gravity of the offending, is a term of imprisonment.

The High Court judgment

[3]New Zealand Police v Brownlee, above n 1, at [33].

[4]At [36].

1. In the High Court Mr Brownlee appealed his conviction on the injuring with intent charge and both sentences.

2. On the issue which is relied upon as the basis for a grant of leave in this Court Moore J said:

   [66]      I have considered whether to allow the appeal on the basis the Judge's arithmetical error places this case into the rare category where what has gone wrong requires correction albeit the sentence imposed is within range.  Indeed the Court in Tutakangahau contemplated such a result where the sentencing Judge has made an explicit arithmetical error.  But the rationale for such an adjustment, that in allowing the appeal the appellate court is giving effect to the sentencing judge's intentions, is not germane in the present context.  After erroneously reaching an end sentence of two years and four months’ imprisonment, the Judge applied a further two month reduction to reflect the totality of Mr Brownlee's offending.  This brought the end sentence in line with the arithmetically correct result; two years and two months' imprisonment.  In my view, the Judge's totality adjustment signals he did not consider a lesser sentence was available.  As such, a correction to account for the arithmetical error would not give effect to Judge Davis’s intentions, and would amount to “tinkering”.

Discussion

1. Mr Brownlee seeks to advance again the contention that, because of an arithmetical error, he should have received a sentence of 24 months and that consequently the Judge would have been required to consider whether a community‑based sentence was appropriate.

2. The Crown supports the reasoning in the High Court judgment.  The point is made that the Judge’s totality adjustment signals that he did not consider a lesser sentence was available, a conclusion bolstered by the explicit statement that the only option available to the Court was a sentence of imprisonment.

3. As this Court stated in R v Xie, the fundamental tenet of the totality principle is that the final sentence must reflect the totality of the offending and that how the total sentence is made up has never been important.[5]  The totality principle is designed to ensure that an offender does not receive a sentence that is out of all proportion with the overall gravity of the offending.[6]

   [5]R v Xie [2007] 2 NZLR 240 (CA) at [16].

   [6]Anand v R [2017] NZCA 566 at [37].

4. In this case, having calculated, albeit by the omission of a two-month reduction, a sentence of 28 months, in applying the totality principle the Judge proceeded to reduce the sentence to 26 months.  The sentence of 26 months happened to accord with the sentence which would have been the product of the correct arithmetical process.  In the event the error in miscalculation was redeemed.  We view this case as an instance of the second category of mathematical errors described in Ferris-Bromley v R.[7]

   [7]Ferris-Bromley v R [2017] NZCA 115 at [15](b).

5. Had the Judge arrived at the correct arithmetical result in the first place and turned his mind to the totality principle we consider that it must follow from his decision that no further reduction beyond 26 months would have been made.  That was the appropriate sentence and there was no justification for a sentence less than that.  The totality principle would not mandate a different outcome.  In terms of Ferris‑Bromley, there can be no suggestion that the sentence was manifestly excessive.

6. In these circumstances we are not satisfied that the proposed appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.  Consequently under s 253(3) of the Criminal Procedure Act 2011 we must not give leave for a second appeal.

Result

1. The application for leave to bring a second appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent