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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fortune v Police

Details

AGLC: Fortune v Police [2019] NZHC 3500
Case: [2019] NZHC 3500
Decision Date: 23 December 2019

CaseChat Overview and Summary

Fortune appeals against his sentence imposed by Judge Phillips in the District Court at Hamilton. The appellant was found guilty of six charges: intentional damage, driving whilst disqualified, dangerous driving, failing to stop when followed by red and blue flashing lights, possession of methamphetamine utensils, and failing to remain stopped. The appellant's counsel argues that the nine-month uplift applied for the appellant's prior convictions was excessive, and the Judge miscalculated the discount to be applied for the appellant's guilty plea. The Police oppose the appeal, accepting that the Judge was in error when he referred to the appellant's prior convictions for violence and non-compliance. However, they submit that a nine-month uplift, while stern, was available to the sentencing Judge. The Police also submit that the Judge was generous in indicating he would allow the full 25 per cent discount for the appellant's guilty plea, and it was open to the Court to provide for a lesser credit than 25 per cent. The Court accepts the submission that the Judge was in error when he referred to the appellant's prior convictions for violence and non-compliance, and took those matters into account in calculating the uplift. The Court also accepts that the Judge miscalculated the discount for the appellant's guilty plea. The Court considers that an appropriate uplift for the appellant's previous offending would have been three months' imprisonment, and grants 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.

The appeal is allowed. The sentence of two years and seven months’ imprisonment is quashed and a sentence of two years and one month’s imprisonment is imposed.

Orders