Capstick v Police

[2020] NZHC 714

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2020-443-7

[2020] NZHC 714

BETWEEN

DOUGLAS JOHN CAPSTICK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	On the papers
Counsel:	J C Hannam for Appellant J E Bourke for Respondent
Judgment:	7 April 2020

JUDGMENT OF SIMON FRANCE J

[1]    Mr Capstick appeals a sentence of two years and 11 months’ imprisonment imposed in relation to 11 charges which were committed on a total of five offending occasions.1 The 11 offences were:

(a)breach conditions of intensive supervision;2

(b)unlicensed driver failed to comply with prohibition;3

(c)failed to remain stopped for an enforcement officer;4

(d)drove a motor vehicle in a dangerous manner;5

1      New Zealand Police v Capstick [2019] NZDC 22472.

2      Sentencing Act 2002, s 70A(a); maximum penalty six months’ imprisonment or a $1,500 fine.

3      Land Transport Act 1998, s 52(1)(c); maximum penalty a $10,000 fine.

4      Section 52A(1)(b); maximum penalty a $10,000 fine.

5      Section 35(1)(b); maximum penalty three months’ imprisonment or a $4,500 fine.

CAPSTICK v NEW ZEALAND POLICE [2020] NZHC 714 [7 April 2020]

(e)obstruct/hinder police;6

(f)assault on person in family relationship;7

(g)under influence drink/drug causing injury;8

(h)under influence drink/drug causing injury;9

(i)failed to stop or ascertain injury;10

(j)possess offensive weapon;11 and

(k)unlicensed driver failed to comply with prohibition.12

[2]    As noted, these charges stemmed from five events. The first was a breach of an intensive supervision order. The order was imposed on 8 August 2018, and the breach occurred on 6 March 2019.

[3]    Charges (b) to (e) on the list come from an all-too-familiar driving event on 10 March. Mr Capstick was forbidden to drive but nonetheless did so. A police pursuit ensued during which there was excessive speed and the ignoring of road signs. The public were put at risk. The incident ended with Mr Capstick rolling the vehicle and running off.

[4]    Charge (f), the assault,  occurred  on  11  March.  The  victim  was  visiting Mr Capstick so he could have time with their baby. The victim seems to have initiated an assault on Mr Capstick, who responded by “backhanding” her to the face.

6      Summary Offences Act 1981, s 23(a); maximum penalty three months’ imprisonment or a $2,000 fine.

7      Crimes Act 1961, s 194A; maximum penalty two years’ imprisonment.

8      Land Transport Act 1998, s 61(2); maximum penalty five years’ imprisonment or a $20,000 fine.

9      Section 61(2); maximum penalty five years’ imprisonment or a $20,000 fine.

10     Section 36(1)(c); maximum penalty five years’ imprisonment of a $20,000 fine.

11     Crimes Act 1961, s 202A(4)(a); maximum penalty three years’ imprisonment.

12     Land Transport Act 1998, s 52(1)(c); maximum penalty a $10,000 fine.

[5]    The next incident, on 9 July, was another driving event that carried the lead sentence. Another vehicle was stopped at a T intersection, waiting to turn right. It was waiting for an approaching light truck to go past. Mr Capstick had been following the now stationary vehicle. Instead of waiting, he passed the vehicle and drove into the path of the oncoming light truck. A collision ensued.

[6]    The driver of the truck suffered serious injuries to his legs. His two grandchildren escaped largely unscathed although one had a cut face. Mr Capstick suffered injuries but left the scene without checking on the truck and over the protests of on-lookers. Later tests disclosed that Mr Capstick had methamphetamine in his system.

[7]    The fifth event was on 28 August. Mr Capstick was again driving when he should not have been. When stopped, police found a sword in the vehicle.

[8]    For all but the last incident Mr Capstick was subject to the sentence of intensive supervision imposed on 8 August 2018.

Sentence structure

[9]    Judge O’Driscoll took the main driving incident of 9 July as the lead offence.13 The starting point was two years nine months’ imprisonment (33 months). Thereafter, the Judge:

(a)added six months for the fact that Mr Capstick was on bail and subject to the supervision sentence when the offence was committed (39 months);

(b)deducted 10 months (25 per cent) for guilty plea (29 months);

(c)added two months for the earlier dangerous driving event (31 months);

13     New Zealand Police v Capstick, above n 1, at [26].

(d)added four months for the assault (backhanding the victim), comprised of a six months starting point with two months deducted for the guilty plea (35 months); and

(e)added four months for possession of the offensive weapon, again by adding six months and deducting two  months  for  the  guilty  plea (39 months).

There were concurrent sentences of 12 months  for failing to  ascertain  injury and six months for breach of supervision sentence, and conviction and discharge on the remaining charges.

[10]   The Judge then looked at totality and decided adjustment was needed. This was done by removing one of the four month links and making it concurrent.14 This brought the end sentence to 35 months’, or two years 11 months’, imprisonment. Judge O’Driscoll also said the six-month sentence for the breach of an intensive supervision sentence had been made concurrent for totality reasons.15

Appeal

[11]   Mr Capstick contends the sentence is manifestly excessive,16 with particular focus on the lead sentence for the main driving incident and the six months’ uplift for being on bail and subject to sentence.

[12]   Concerning the first ground, it is submitted a starting point three months lower should have been taken. It is noted it was a single incident of bad driving which was of brief duration and although it caused serious injuries they were not injuries at the high end of the spectrum. Whilst Mr Capstick had methamphetamine in his system, an aggravating factor, it is submitted there was no established causative link between the methamphetamine and the poor decision to pass at the intersection.

14 At [35].

15 At [36].

16     Criminal Procedure Act 2011, s 250; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

[13]   In relation to the six-month uplift, it is submitted that an 18 per cent increase is excessive. Mr Capstick submits that in many cases no uplift is applied for an offender being on bail or a sentence at the time of offending, or a lower one is applied.17

[14]   Overall, Mr Capstick submits his sentence should be reduced by six months to recognise a three months lower starting point on the lead charge and an uplift of only three months.

Decision

[15]   The key issue is, of course, whether the end sentence is manifestly excessive. The appellant focuses on two links in a much longer chain. If those links are in themselves excessive, it would normally point to an excessive end sentence. Here, however, the Judge has twice adjusted for totality.

[16]   Totality adjustments occur when the correct sentence for various offences or factors, if all made cumulative, would produce a sentence greater than the overall culpability.18 In these cases the end sentence is an overall evaluation of the correct level for all the offending and all the factors relating to the offender – positive or not so. What the Court must do is stand back and say, to take the present case, the sum of all these factors would be a final sentence of three years and nine months. But that would be excessive, so totality adjustments of 10 months will be made.

[17]   The effect of this approach, an approach mandated by s 85 of the Sentencing Act 2002, is that alleged errors as contended for here are compensated for. If the appellant were correct, the end  sentence  before  adjustment  should  have  been three years and three months – that is, reducing the end sentence before adjustment by six months. All that would mean is that the totality adjustment would be four months. It is for this reason the appeal cannot succeed on the basis advanced.

17     Relying on Sunnex v New Zealand Police [2019] NZHC 2589 at [23]; and R v Tapine [2019] NZHC 3134 at [16].

18     Sentencing Act 2002, s 85.

[18]   For completeness, however, I address the main challenges. Concerning the six-month uplift, two points can be made.

[19]   First, no uplift was made for past offending. Mr Capstick has a significant history of similar driving offences for which he has been imprisoned. He also has previous convictions for unlawful possession of weapons.

[20]   Second, the factors underlying the six-month uplift are particularly stark here. Mr Capstick was on bail for a serious incident of bad driving in which public safety had been put at risk. He was prohibited from driving, yet ignored that prohibition and his bail status to again drive dangerously. One person suffered serious injuries, and two young lives were put in serious jeopardy. For these reasons, as well as the general context of all the key offending occurring both while on bail and subject to a sentence, the six-month uplift was not excessive.

[21]   As for the starting point of two years and nine months for this driving incident, it is common ground there are no authorities particularly on point. I accept it is not the worst example of its type, being of short duration and the product of a single bad decision. The consequences to the victims, while very significant for them, again are not as extreme as sometimes occurs.

[22]   It was, however, a very dangerous thing to do, and the consequence of a significant crash was very likely. I agree with the Judge’s overall assessment and do not consider his starting point to be in error. The offending has been placed in the correct area of the spectrum.

[23]The appeal is dismissed.

Simon France J

Solicitors:

Hannam & Co Lawyers, New Plymouth for Appellant Crown Solicitor, New Plymouth for Respondent