Eagle v Police

[2024] NZHC 2020

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-000139

[2024] NZHC 2020

BETWEEN

TREVOR EAGLE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	22 July 2024
Appearances:	M Starling for the Appellant L Fiennes for the Respondent
Judgment:	23 July 2024

JUDGMENT OF HARVEY J

This judgment is delivered by me on 23 July 2024 at 2.30pm.

…………………………………………..

Registrar / Deputy Registrar

Counsel:
M Starling, Barrister, Christchurch

Solicitors:

Raymond Donnelly & Co (Crown Solicitor’s Office), Christchurch

EAGLE v NEW ZEALAND POLICE [2024] NZHC 2020 [23 July 2024]

Introduction

[1]                 Trevor Eagle pleaded guilty to driving in a dangerous manner,1 failing to give name and address on demand,2 possession of a knife,3 resisting police,4 and refusing to give a blood sample.5 On 21 May 2024, Judge Couch sentenced him to 17 months’ imprisonment.6 Mr Eagle now appeals that sentence on the basis that it is manifestly excessive.

[2]                 Mr Starling, for Mr Eagle, argued that the Judge was inadvertently misled by Mr Eagle’s then counsel about the 172 days he spent in custody before sentencing. This period was characterised as custodial remand, which would have been applied as a credit against Mr Eagle’s end sentence by prison authorities. However, Mr Eagle had instead been recalled to prison before sentencing and a different approach was required. Counsel submitted that the Court could apply a “one for one” approach to the days spent on recall. Mr Starling also confirmed that his client was on parole at the time of the offending, having been sentenced to preventative detention in 2006. Counsel underscored that the net effect for his client should the appeal be allowed would be to enable him to appear before the Parole Board at an earlier date. A successful appeal would not result in his release.

[3]                 Ms Fiennes for the Police accepted that some adjustment was necessary given the circumstances. She contended that the correct pathway would be for this Court to follow Fane v R and apply a two-thirds approach to the time spent on recall.7

The offending

[4]  On the morning of 1 December 2023, Mr Eagle was driving on Springs Road near Lincoln. At the time, Police were attending a crash nearby. Mr Eagle crossed the

1      Land Transport Act 1998, s 35(1)(b). Maximum penalty of three months’ imprisonment or a fine not exceeding $4,500.

2      Section 52A(1)(a)(ii), 52A (3), 52A (6) & 114(2). Maximum penalty a fine not exceeding $10,000.

3      Summary Offences Act 1981, s 13A. Maximum penalty of three months’ imprisonment or a fine not exceeding $2,000.

4      Section 23(a). Maximum penalty of three months’ imprisonment or a fine not exceeding $2,000.

5      Land  Transport   Act  1998,  s  60(1)(c),  60(3)  &  73(1).     Maximum penalty of two years’ imprisonment or a fine not exceeding $6,000. Minimum 12 months’ disqualification.

6      Police v Eagle [2024] NZDC 11412.

7      Fane v R [2019] NZHC 408.

centre line and deliberately drove into a police vehicle on the grass verge. He drove off at a high speed, estimated at 160 kilometres per hour. Despite Police following him with lights flashing and a siren, he did not stop and eventually crashed. Mr Eagle refused to provide his name and brandished a cleaver at Police, threatening violence. When Mr Eagle was told he was under arrest, he threw several objects at Police making it difficult for them to handcuff him. He was taken to Christchurch Hospital where he refused to allow a blood sample to be taken to test for alcohol or drugs.

District Court decision

[5]                 The Judge considered the lead charge was that of refusing to give a blood sample, which carries a maximum penalty of two years’ imprisonment. He noted that Mr Eagle had seven prior convictions for driving while impaired. He set a starting point of 18 months’ imprisonment on that charge. The Judge then considered the gravity of offending as it related to the cleaver as being very serious because it was a dangerous weapon capable of causing real harm. Possession of the cleaver was aggravated by Mr Eagle brandishing it and threatening to use it on Police. A starting point of three months’ imprisonment was adopted on that charge.

[6]                 For the remaining charges, an uplift of two months was applied leading to a combined starting point of 23 months’ imprisonment. Considering totality, the Judge adjusted this down to 20 months’ imprisonment. For personal aggravating factors, he applied an uplift of five per cent to reflect that Mr Eagle was on parole at the time of the offending. An additional five per cent uplift was applied to account for Mr Eagle’s extensive criminal history, including other driving offences. A 25 per cent discount for Mr Eagle’s guilty plea was also applied, resulting in an end sentence of 17 months’ imprisonment.

Approach on appeal

[7]                 The appeal must be allowed if the Court is satisfied that there has been an error in the sentence and that a different sentence should be imposed.8 The sentence below

8      Criminal Procedure Act 2011, s 250(2).

must be shown to be manifestly excessive or wrong in principle.9 The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.10 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.11

Submissions

[8]                 Mr Starling submitted that the end sentence was due to an error in the submissions of Mr Eagle’s then counsel — that Mr Eagle had been remanded in custody for 172 days at the time of sentencing. Counsel contended that if the Judge had been correctly informed, the 17-month sentence may have been reduced by up to 172 days.

[9]                 Mr Starling argued that the effect of the recall is that the appellant had zero remand days. Once the interim recall application was filed with the Parole Board, Mr Eagle became a sentenced prisoner again. Counsel contended that the Judge had the jurisdiction to reduce the end sentence by the time spent in custody post-recall but was not asked to do so. Moreover, Mr Starling submitted that if the Judge had been correctly informed, he would have reduced the 17-month sentence by up to 172 days to take account of what is usually remand time calculated by the prison receiving office. In this case the time was post-recall.

[10]              Ms Fiennes accepted that the 172 days the appellant spent in custody fell within the definition of time spent serving a sentence of imprisonment, and not pre-sentence detention under s 91 of the Parole Act 2002. That said, Ms Fiennes did not agree with Mr Starling’s submission that the Judge, if properly informed, would have given an overall sentence reduction by 172 days. Counsel contended that a proportionate discount would have been applied, following the general approach adopted by the courts. Ms Fiennes referred particularly to Fane v R.12 There, this Court considered the approach generally adopted was to apply an uplift to reflect the particular breach

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].

10     Tutakangahau v R, above n 9 at [36]; and Te Aho v R [2013] NZCA 47 at [30].

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

12     Fane v R, above n 7.

and then allow a credit of approximately two-thirds of the period following recall.

Counsel also cited in Sililoto v R and R v Griffiths in support.13

[11]              Applying those authorities to the present case, Ms Fiennes argued that, with Mr Eagle having been held in custody following his recall for a period of 172 days (or five months and three weeks), an appropriate reduction on sentence would have been in the range of three- to four- months’ imprisonment. This approach, if applied, would have resulted in an end sentence of 13- to 14-months’ imprisonment. Even so, counsel submitted that the Judge’s five per cent (or one month) uplift for offending on parole was lenient and that the credit given for guilty pleas was also generous.

Discussion

[12]              As foreshadowed, Ms Fiennes accepted that some adjustment to the end sentence is necessary. It is simply a question of what change is appropriate. In summary, Mr Starling submitted that it was open to this Court to apply a “one for one” formula. Conversely, Ms Fiennes contended that the orthodox and appropriate pathway is for the Court to follow Fane and apply a two-thirds’ deduction. As Hinton J put it, the two-thirds approach is to be preferred over the “one for one” alternative:14

[47]   The discount is not usually on a one-for-one basis. Had that been intended by Parliament, there would have been a statutory provision to that effect, as there is for a defendant being on remand. Clearly there is some double-up in being recalled to prison because of the parole breach, while also being sentenced for that breach, but to some extent the prisoner’s continuing to serve the outstanding sentence is a consequence, or loss of benefit, rather than an added punishment.

[48]   Without the matter having been considered in depth, the Courts seem now to apply an uplift to reflect the particular breach and then allow a credit of approximately two-thirds or a little more, of the period on recall. That seems, as a general approach, a just and proper course.

[13]              In short, but for the inadvertent omission by Mr Eagle’s previous counsel, the outcome would have been different. The learned Judge therefore erred because of this omission. This resulted in a sentence that was manifestly excessive.

13     Sililoto v R [2016] NZCA 328; R v Griffiths [2018] NZHC 3132.

14     Fane v R, above n 7.

[14]              I agree with Mr Starling that it is open to the Court to apply a “one for one” approach. However, taking account of the authorities cited by Ms Fiennes, and the discounts applied by the Judge, I consider that overall, the two-thirds approach is appropriate in this case. It does not present as a situation that is so out of the ordinary run of examples that it warrants a different approach. The end result is therefore a reduction in sentence from 17 months’ to 13- or 14-months’ imprisonment.

Decision

[15]The appeal is allowed.

[16]              A discount of 4 months for the time spent on recall is allowed. The sentence of 17 months’ imprisonment imposed on Trevor Eagle is set aside and substituted with a sentence of 13 months’ imprisonment.

Harvey J