Cruden v Police
[2023] NZHC 2073
•7 August 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-109
[2023] NZHC 2073
BETWEEN BRENDAN JAMES CRUDEN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 August 2023 Appearances:
K L Chalmers for Appellant
G E R Alloway for Respondent
Judgment:
7 August 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 7 August 2023 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
CRUDEN v NEW ZEALAND POLICE [2023] NZHC 2073 [7 August 2023]
Introduction
[1]Brendan Cruden pleaded guilty to the following charges:
(a)unlawfully using a motor vehicle;1
(b)escaping police custody;2
(c)possession of a weapon;3
(d)possession of utensils;4
(e)possession of a class A drug;5
(f)possession of instruments for conversion;6 and
(g)breach of release conditions.7
[2] On 25 May 2023, he was sentenced in the District Court to 26 months’ imprisonment and ordered to pay reparation of $1,026.77.8 He appeals his sentence on the basis that the Judge:
(a)failed to apply a greater discount to reflect mitigating factors; and
(b)failed to adjust the end sentence to that of the least restrictive outcome to reflect the purposes and principles of sentencing.
[3] A further ground of appeal, being failure to apply a discount of 20 per cent to reflect the appellant’s guilty plea, was not pursued at hearing with Ms Chalmers
1 Crimes Act 1961, s 226(1) – maximum sentence: seven years’ imprisonment.
2 Section 120(1)(c) – maximum sentence: five years’ imprisonment.
3 Section 202A(4)(a) – maximum sentence: three months’ imprisonment.
4 Misuse of Drugs Act 1975, s 13(1)(a) and (3) – maximum sentence: one year imprisonment, $500 fine.
5 Section 7(1)(a) and (2) – maximum sentence: six months’ imprisonment, $1000 fine.
6 Crimes Act, s 227 – maximum sentence: one year imprisonment.
7 Sentencing Act 2002, s 96(1) – maximum sentence: one year imprisonment, $2000 fine.
8 R v Cruden [2023] NZDC 11105.
accepting that using the sentencing methodology in Moses v R, the discount afforded was 25 per cent.9
Facts
[4] Within no more than a month and a half of Mr Cruden’s release from prison on 20 June 2022, he repeatedly failed to report to his probation officer as directed.
[5] Between approximately 6:00pm on Sunday 20 November and 11:30am on Monday 21 November 2022, the victim’s motor vehicle was stolen from a Dunedin address. During the afternoon of Monday 21 November, the stolen vehicle was involved in a fleeing driver incident in Timaru. At approximately 5:40pm, Mr Cruden was seen driving the stolen vehicle between Rolleston and Christchurch. He arrived in Christchurch and parked the stolen vehicle in the Northlands Mall carpark.
[6] Police entered the carpark and activated blue and red lights, blocking the stolen vehicle in the carpark. Mr Cruden immediately got out of the vehicle and ran towards the mall entrance. Police clearly shouted at him that he was under arrest and that he had to stop, however he did not. Police pursued him in the mall, again telling him that he was under arrest. However, Mr Cruden refused to comply with this and ran into the Countdown supermarket. Police observed a folded flick knife in his right hand and directed him to release the knife. He again failed to comply with these instructions. He was eventually stopped by police, although he continued to resist arrest and was eventually placed in handcuffs.
[7] Police invoked search powers under the Search and Surveillance Act 2012. Under the driver’s seat, Police located a 20-centimetre silver knife. In a compartment to the right of the driver’s seat, Police located a glass pipe used for smoking methamphetamine. Police located one tab of LSD in his wallet in a small clear snaplock bag.
9 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
District Court decision
[8] Judge O’Driscoll noted that Mr Cruden is aged 39 and has accrued 132 convictions since 2001.
[9] There was no suitable address for serving an electronically monitored sentence. Mr Cruden’s counsel submitted, however, that taking into account the time spent in custody, the Court could impose a sentence of intensive supervision. If he was subject to an outpatient programme, he could deal with his ADHD and his impulsive behaviour.
[10] The Judge adopted a starting point of two years’ imprisonment. This was increased by six months to reflect the fact the offending was committed while subject to release conditions. A further six months was added due to the previous convictions for similar offending. The sentence was then reduced by four months to take into account Mr Cruden’s personal circumstances and reduced again by six months to take into account the guilty plea.
[11]This resulted in a sentence of imprisonment of 26 months.
[12]In addition, an order was made for reparation in the sum of $1026.77.
Principles on appeal
[13] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.10 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.11 It is only appropriate for this Court to intervene and substitute its own views if the sentence
10 Criminal Procedure Act 2011, ss 250(2) and 250(3).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.12
Submissions
Appellant’s submissions
[14] Ms Chalmers, for Mr Cruden, seeks that the sentence of 26 months’ imprisonment is quashed and replaced with a sentence of intensive supervision.
[15] In respect of personal mitigating factors, Ms Chalmers said the discount of four months’ imprisonment (which she initially calculated as being a discount of approximately 11 per cent), did not adequately address the factors raised, and in her written submissions, she suggested a total discount of approximately 20 per cent should have been applied. While accepting that the actual discount was just under 17 per cent of the starting point for the sentence, she suggested it should be higher than this to reflect the four mitigating factors she identified.
[16] First, the Court did not recognise whether there was a causative link between Mr Cruden’s addiction and his present offending, having regard to the decision of Zhang v R.13 Mr Cruden’s alcohol and drug report outlined a history of methamphetamine use since his early mid-teens, and continual use since, except for when he has been incarcerated. It is submitted that the appellant’s conviction history is littered with dishonesty offending which can easily be seen as offending to fund an addiction. The causative link of drug addiction to Mr Cruden’s actions and behaviour is established firmly enough that a discount of approximately 15 per cent should have been applied.
[17] Secondly, the Judge failed to take into account Mr Cruden’s ADHD diagnosis. It is accepted that the Judge did not have a report before him from a clinical psychologist specialising in the areas of ADHD. However, it should have been considered regardless. Mr Cruden has acknowledged his impulsive behaviour and spoke of being open to exploring this diagnosis and seeking assistance. He has attested
12 Ripia v R [2011] NZCA 101 at [15].
13 Zhang v R [2019] NZCA 507.
to using drugs to self-medicate. It is submitted that a discount of approximately 5-10 per cent should have been applied.
[18] Thirdly, as noted in the alcohol and drug report, Mr Cruden was held hostage while serving a prison sentence in 2021. While the persons involved were charged in relation to this matter, those charges were later withdrawn, which Ms Chalmers submits left the appellant with a lack of trust in people and the community. She says this is clearly a barrier to the appellant’s rehabilitation which needs to be taken into account.
[19] The pre-sentence report also noted that the appellant is vulnerable to the pressure of others when in the community and this, too, should have been taken into account.
[20] The second ground of appeal is that the Judge erred by failing to consider whether there was a less restrictive sentence which was more appropriate for Mr Cruden. The sentence start points and uplifts are not disputed. However, when adjusting the starting point for the mitigating factors discussed above, it is submitted that the appellant would be more appropriately sentenced to 21 and a half months’ imprisonment, placing the appellant on a sentence of under two years. This means that the court must then consider whether there was a less restrictive and more appropriate option available.
[21] It is submitted in circumstances where it appears that imprisonment does little to deter the appellant, other options should have been considered. When taking into account his personal circumstances, and the lack of recent community-based sentences, Ms Chalmers argues there were less restrictive sentencing options available to the Court. Given the appellant has already served six months imprisonment, it is submitted that the most appropriate and least restrictive available sentence, is a sentence of intensive supervision.
Respondent’s submissions
[22] Mr Alloway, for the Crown, submits that if the discounts are quantified using the methodoloty outlined in Moses v R, the District Court afforded substantial discounts to the appellant.
[23] Mr Alloway explaines that the Judge adopted a starting point of 24 months’ imprisonment for the offending. This was step one of the Moses assessment. Both the uplifts and the discounts need to be seen, in percentage terms, in relation to this sentence. The four month discount is around a 17 per cent discount from the starting point of 24 months’ imprisonment, while the six month discount for guilty plea is a 25 per cent discount, being the maximum discount available. Once the discounts afforded are seen in this light, they slightly exceed the percentage discounts which the appellant submits should have been allowed, and so should not be disturbed on appeal.
[24] With regards to whether intensive supervision ought to have been imposed, the Crown submits that such a sentence would have been manifestly inadequate. Firstly, the current offending was committed while subject to release conditions. An intensive supervision sentence requires weekly reporting and the appellant’s lack of compliance in the past with reporting conditions is relevant to the appropriateness of such a sentence. Mr Cruden has 22 convictions for breaching his release conditions. The starting point of imprisonment indicates that a sentence of intensive supervision would be inadequate to capture the culpability of the offending and further, a sentence of intensive supervision is unlikely to serve a rehabilitative purpose.
Analysis
[25] The first ground of appeal focuses on whether an adequate discount was afforded for mitigating circumstances. While Ms Chalmers cites four personal mitigating factors, I consider that there is duplication in these and not all of them are causative of the offending.
[26] It is clear that Mr Cruden suffers from ADHD. While there is no formal report confirming this, he reports being diagnosed with ADHD as a child. As Mr Cruden said to the pre-sentence report writer “I just don’t think first, I do it then think about it
later”. It is highly likely that the diagnosis of ADHD is a powerful driver of his offending. I also consider that his vulnerability to pressure from others, leading him to commit property offences on request or under the threat of others, is simply a manifestation of his ADHD. It is neither a standalone mitigating factor nor, in relation to the current spate of offending, is it identified as a driver of the offending.
[27] In terms of whether drug addiction is causative of his offending, I accept Mr Cruden is a drug user and he advised the pre-sentence report writer that he uses cannabis and methamphetamine, when available, to self-medicate, especially when he is feeling down or when he needs to “calm his racing brain down”. However, he also advised that neither substance was an issue at the time of the offending. For this reason, I do not consider that drug addiction or substance abuse was causative of the offending warranting a standalone discount as a mitigating factor.
[28] Finally, Ms Chalmers refers to his alcohol and other drug assessment which advised that he was not interested in having residential treatment options canvassed because he was held hostage in prison and “struggles when forced to live with strangers”. Again, there is nothing to suggest that this incident is causative of his offending. Mr Cruden has an extensive criminal history commencing when he was a youth. There is nothing to suggest the incident he refers to accelerated his offending behaviour or triggered the offending in question.
[29] In all the circumstances, I consider the four month discount, or just under 17 per cent, which the Judge afforded for personal mitigating factors generously recognised personal mitigating factors for Mr Cruden and, in particular, his ADHD diagnosis which contributes to his compulsive behaviour and poor decision making.
[30] While I consider the uplifts imposed on Mr Cruden’s sentence for offending while subject to release conditions and for his previous (and extensive) conviction history for similar offending, were high, the discounts he was afforded were equally generous.
[31] In these circumstances, I do not consider the sentence of 26 months was manifestly excessive. It represented a number of different offences, with some of them
culminating in what must have been a frightening incident in a public shopping mall where the appellant was pursued through the mall by Police and then physically grabbed and pulled to the ground to stop him.
[32] Given my conclusion that the sentence was not manifestly excessive, I do not need to consider whether a sentence of intensive supervision would have been more appropriate. However, I am confident it would not have been. While Ms Chalmers said the Judge acknowledged prison did not deter his behaviour, and he had not had a community-based sentence for some time, there was clear evidence before the Judge that he would be unlikely to comply with a community-based sentence. He had very recently, repeatedly breached his post-sentence release conditions and the pre-sentence report writer lacked confidence that Mr Cruden would engage with community-based sentences.
[33] Thus, even if I had allowed the sentence appeal, I would not have considered a sentence of intensive supervision appropriate. It would neither reflect the severity of the offending, nor would it have served any other useful purpose given Mr Cruden’s acknowledged inability to comply with such sentences.
Result
[34]The appeal is dismissed.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
K L Chalmers, Barrister, Christchurch
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