Fortune v Police

[2019] NZHC 3500

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-419-84

[2019] NZHC 3500

BETWEEN

CHAD JADE FORTUNE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

18 December 2019

Appearances:

G D Prentice for Appellant

A S C Alcock for Respondent

Judgment:

23 December 2019

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 23 December 2019 at 11:00 am

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Hamilton

FORTUNE v POLICE [2019] NZHC [ 3500] [23 December 2019]

Introduction

[1]    Mr Fortune appeals against a sentence of two years and seven months’ imprisonment imposed by Judge Phillips, in the District Court at Hamilton, on 17 October 2019, on charges that he pleaded guilty to on the morning his trial was due to commence.1 Those charges are:

(a)Intentional damage.2

(b)Driving whilst disqualified third or subsequent.3

(c)Dangerous driving.4

(d)Failing to stop when followed by red and blue flashing lights third or subsequent.5

(e)Possession of methamphetamine utensils.6

(f)Failing to remain stopped.7

[2]    Mr Prentice for the appellant, submits that the sentence imposed by Judge Phillips was manifestly excessive for two reasons. First, he says that the nine month uplift the Judge applied for the appellant’s prior convictions was excessive. Second, he says the Judge erred by miscalculating the discount to be applied for the appellant’s guilty plea.

[3]The Police oppose the appeal.

1      Police v Fortune [2019] NZDC 20920.

2      Crimes Act 1961, s 269(2)(a) (maximum sentence seven years’ imprisonment).

3      Land Transport Act 1998, s 32(1)(a) & (4)(a) (maximum sentence two years’ imprisonment).

4      Land Transport Act 1998, 35(1)(b) (maximum sentence three months’ imprisonment).

5      Land Transport Act 1998, 52A(1)(a)(ii) & (5) (maximum sentence three months’ imprisonment).

6      Misuse of Drugs Act 1975, s 13(1)(a) & (3) (maximum sentence one years’ imprisonment).

7      Land Transport Act 1998, s 52A(1)(b) (maximum sentence $10,000 fine).

Background

[4]    On 15 June 2018, the appellant was disqualified from driving for a period of one year. He had been convicted for driving while disqualified on seven previous occasions.

[5]    On 6 February 2019, at 3.13 am, the appellant was driving a Ford motor vehicle south on Ulster Street, Hamilton. He had another person in the car with him. Police were conducting a routine traffic stop, and the appellant stopped his vehicle. Police then approached the vehicle and requested the appellant to produce his driver’s licence. He said his name was “Jason” and proceeded to make a U turn and drove away without providing any further details.

[6]    The Police in the patrol cars initiated pursuit, activating their red and blue flashing lights and sirens. During the early part of his flight from the police he drove through multiple red traffic lights in the Hamilton City before exiting the city and entering a rural area. Although vehicle traffic in the city centre at that early hour of the morning was minimal, there were a number of pedestrians around the southern end of Victoria Street following bars closing on what was a public holiday.

[7]    Once out into the rural area the driving conditions changed and although the road surface was dry there were intermittent patches of fog, although road traffic was minimal.

[8]    While fleeing Police, the appellant drove at speeds exceeding 120 kilometres per hour through a 50 kilometre per hour zone. He also swerved into the right hand side of the road numerous times, and at one point while travelling on State Highway 27 he drove along the right hand side of the road for approximately 20 seconds.

[9]    Road spikes were ultimately deployed by the Police in an attempt to stop the appellant, however, he spotted the spikes and although he slowed down in an attempt to avoid them, he was unable to slow sufficiently to avoid them. He then accelerated towards a constable in an attempt to avoid the spikes, and collided with the constable’s vehicle. He then reversed away and rammed into another police vehicle being driven by a second constable.

[10]   The appellant continued to flee even after his vehicle’s tyres had been spiked. Three tyres were deflated instantly. Nevertheless, the appellant continued to drive his vehicle at speeds of up to 80 kilometres per hour on the three steel rims causing damage to the road. After encountering the road spikes, the appellant managed to drive for approximately 11 kilometres before finally coming to a stop.

[11]   All together the pursuit continued for an hour and 15 minutes and extended over approximately 112 kilometres.

[12]   In explanation to Police, the appellant said that he failed to stop as he had recently been released from prison for driving matters, and admitted to knowing that there was a warrant was out for his arrest.

District Court decision

[13]   The Judge began by noting that the appellant had pleaded guilty the same day he was being sentenced, and on the morning of the first day of his trial after he had reviewed a police video which recorded some parts of the police pursuit and his apprehension. After viewing the video prior to the commencement of his trial, the appellant instructed his counsel to enter into discussions with police regarding the charges he was facing. It appears that following discussions between his counsel and the prosecutor, two charges were withdrawn. They were charges of resisting police, and assault with a weapon which related to his ramming his vehicle into the constable’s vehicle.

[14]   The Judge selected the charge of causing intentional damage to a police car as the lead offence for the purposes of setting a starting point, that offence carrying with it a maximum sentence of seven years’ imprisonment. The Judge rejected a submission by the appellant’s counsel that the driving while disqualified charge, having a maximum sentence of two years’ imprisonment, should be adopted as the lead charge. The Judge explained his approach saying that the charge of intentional damage to the police vehicles was:8

8      At [9]

…by far the most serious in relation to penalty and is a culmination of all the aggravating factors and I will be taking that as the head [sic] charge with the other charges adding to the starting point.

[15]   The Judge referred to the offending as described in the summary of facts. He said that in all his years as a Judge, the appellant’s driving represented “the worst driving fact summary I have ever heard.”9 The Judge described the appellant’s driving as “horrendous”, and having placed lives at risk in both the central city and the rural area he had driven through, that the appellant was heedless of the consequences of his driving and the safety of others, and that he had acted in an aggravated manner towards police, whose job it was to apprehend him.10

[16]   Having entered his pleas of guilty, the appellant did not want his sentencing delayed while awaiting the preparation of a pre-sentence report, and the Judge proceeded to sentence him by reference to previous pre-sentence reports prepared in relation to the appellant. The first pre-sentence report was dated 1 June 2018 and was prepared when he was facing similar charges to the present on which one year’s imprisonment was imposed. The Judge commented that he considered the driving conduct in that earlier case to have been nowhere near as serious as the appellant’s driving in the present case. That report said that the appellant had an appalling driving history, a sense of entitlement and had no real motivation to change. The report also said that the appellant was a high risk offender, and posed a high risk to other road users.

[17]   The second pre-sentence report was dated 17 September 2018 and was prepared in relation to charges of dangerous driving and assault with a weapon. The Judge noted that report described the appellant as having a willingness to use any means to evade police.

[18]   Judge Phillips adopted a starting point of two years and six months’ imprisonment for the offending in totality. He noted the appellant’s “alarming” criminal history, including seven convictions for reckless and dangerous driving, seven convictions for failing to stop, and at least three prior convictions for driving

9 At [4].

10 At [4].

whilst disqualified. The Judge also noted that the appellant had multiple convictions for injuring with intent, assault with a weapon and resisting police, and eight convictions for breach of release conditions and community-based sentences.11 The Judge considered that the sentences imposed on the appellant in relation to those convictions did not bring about the desired result, and he imposed an uplift of nine months, resulting in an adjusted starting point of three years and three months’ imprisonment.

[19]   The Judge noted that in the course of his discussions that morning, he had informed the appellant that were he to enter guilty pleas, he would allow him the full credit for pleading guilty. In delivering his decision the Judge said “I give you full credit” and applied a discount of eight months, bringing the end sentence to two years and seven months’ imprisonment.12

Approach on appeal against sentence

[20]   Under the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.13

[21]   In deciding whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.14 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.15 The focus is on the end result rather than the process by which the sentence was reached.16

Submissions

[22]   Mr Prentice for the appellant does not challenge the starting point of two years and six months’ imprisonment. In relation to the Judge’s adoption of the intentional damage charge as the lead offence for sentencing, Mr Prentice says that the damage caused by the collision between the appellant’s vehicle and the Police vehicles was

11 At [13].

12 At [13].

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

14     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

15     Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R, at [30]–[35].

16     Tutakangahau v R, at [36].

relatively minor. He produced a set of Police photographs which were prepared as an exhibit for the appellant’s trial which confirm that the damage was indeed minor and show a small dent and scratch on the front bumper of one of the Police vehicles.

[23]   However, Mr Prentice principally takes issue with the uplift of nine months imposed by the Judge to take account of the appellant’s prior convictions. Counsel also notes that the Judge appears to have taken into account the appellant’s convictions for violence and non-compliance when calculating the uplift and, if so, that is in error.

[24]   Mr Prentice submits that when considering the uplift for prior offending, the Judge should only have considered the appellant’s previous convictions for dangerous and reckless driving, and for failing to stop. He says that the appellant’s prior convictions for driving while disqualified should have been considered when setting the starting point, and he relies on Drinkwater v Police, for that proposition.17

[25]   Mr Prentice submits that the appellant has 12 relevant prior convictions for dangerous or reckless driving, and failing to stop for police. He points out that for those convictions, the appellant served total sentences of nine months’ imprisonment, and submits that by uplifting the starting point by nine months on account of the appellant’s prior offending, the Judge was effectively punishing him over again, with the consequence that he was being punished twice for his previous offending. Counsel submits that having regard to the need for proportionality between prior sentences and any uplift applied, the appropriate uplift in the present case would be no more than two months’ imprisonment.

[26]   Counsel further submits that the Judge clearly indicated he would grant the appellant a full 25 per cent discount for entering guilty pleas and the appellant should be entitled to this, notwithstanding his guilty plea was entered on the morning of his trial. Counsel points out that the Judge has granted that discount, but miscalculated its application as 25 per cent of the 39 month starting point is 9.75 months rounded to 10 months, and the Judge allowed only eight months.

17     Drinkwater v Police [2013] NZHC 1036.

[27]   For the Police, Ms Alcock accepts that the Judge would have been in error if he took into account the appellant’s convictions for violence and non-compliance. Nevertheless, counsel submits that a nine-month uplift, while stern, was available to the sentencing Judge. Ms Alcock also points out that the appellant’s offending occurred while he was subject to release conditions for similar offending.

[28]   As regards the guilty plea discount, Ms Alcock submits that the Judge was generous in indicating he would allow the full 25 per cent discount, considering the appellant’s guilty plea was entered on the first day of the scheduled trial. Ms Alcock also notes that an amendment to the charges was made, with police withdrawing a charge of assault with a weapon and resisting police. However, counsel says that notwithstanding the withdrawal of those charges the factual summary on which the prosecution case against the appellant was based remained the same. Acknowledging that the Judge miscalculated the discount, Ms Alcock submits that it was nevertheless open to the Court to provide for a lesser credit than 25 per cent for the appellant’s guilty plea.

Analysis

[29]   One submission put to me by counsel for the appellant was that it was artificial of the Judge to adopt the offence of intentional damage as the lead charge, and instead the offence of driving while disqualified should have been adopted, with uplifts provided to take account of the damage caused to the Police vehicles. Nevertheless, counsel does not challenge the starting point of two and half years.

[30]   The maximum sentence for driving while disqualified third and subsequent is two years’ imprisonment. The Judge could not have treated that as the lead charge and still adopted a starting point of two and half years. In the circumstances, and having regard to the admitted facts relating to the manner of the appellant’s driving culminating in him being stopped and his final attempt to drive away during which he intentionally drove into the Police vehicles, I consider that it was appropriate for the Judge to treat the intentional damage offence as the lead charge for the purposes of sentencing, as the maximum sentence that can be imposed for that offence is seven years’ imprisonment.

[31]   However, I accept that when calculating the starting point, the Judge should have, and likely did have, regard to the number of prior convictions the appellant has for driving while disqualified, and in order to avoid double counting, those convictions should not have been considered when applying uplifts for his prior offending.

[32]   Accordingly, adopting the intentional damage offence as the lead charge, and recognising the appellant’s eight prior convictions for driving while disqualified, and taking into account the appellant’s appalling driving on the night in question, I consider that the appropriate starting point was two years and six months’ imprisonment.

[33]   Turning to consider uplifts for the appellant’s prior offending, I accept the Judge was in error when he referred to the appellant’s prior convictions for violence and non-compliance, and the convictions for driving while disqualified, and took those matters into account in calculating the uplift. The Crown also accepted that approach was an error. In those circumstances, I consider that an appropriate uplift for the appellant’s previous offending would have been three months’ imprisonment. That also recognises that the appellant’s offending occurred while he was subject to release conditions for similar offending. That would lead to an adjusted starting point of two years and nine months’ imprisonment.

[34]   I turn to the guilty plea discount provided by the Judge. I note that the Judge explicitly recorded in his sentencing decision that on the morning of the first day of trial he told the appellant that were he to plead guilty he would grant him the full discount for plea. The Judge then said he was granting the full guilty plea discount, but in fact only allowed eight months, which is approximately 20 per cent. I think it is an error for the Judge to have clearly indicated to the appellant that he would allow the full guilty plea discount, and thereby encouraged a guilty plea, to then not allow that level of discount.

[35]    In those circumstances, I would grant the full discount of 25 per cent from the adjusted starting point of two years and nine months’ imprisonment to result in a final sentence of two years and one month’s imprisonment.

[36]   I therefore consider that the Judge was in error, and imposed a sentence that was manifestly excessive.

Result

[37]The appeal is allowed.

[38]   The sentence of two years and seven months’ imprisonment is quashed and a sentence of two years and one month’s imprisonment is imposed.

Paul Davison J