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Fugle v The the Queen

Fugle v The the Queen

Case [2022] NZCA 124 11 April 2022

Recklessness

Aggravated & Exemplary Damages

Community Detention

Compensatory Damages

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA738/2021
[2022] NZCA 124

BETWEEN	LESLIE WILLIAM FUGLE Appellant
AND	THE QUEEN Respondent

Hearing:	29 March 2022
Court:	Brown, Lang and Mallon JJ
Counsel:	P L Murray for Appellant M G Wilkinson and T Bagnall for Respondent
Judgment:	11 April 2022 at 11.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

Mr Fugle was charged with intentional damage[1] arising from an incident where the 20 tonne digger he was operating damaged the vehicle of Council officers undertaking a subdivision compliance inspection. Mr Fugle was found guilty by a jury and was sentenced by Judge Edwards in the District Court at Palmerston North on 17 December 2021 to two months’ community detention, 150 hours of community work and to pay $5,000 by way of emotional harm reparation.[2] He appeals his sentence on the grounds that it was inappropriate or manifestly excessive.

The offending

[1]Crimes Act 1961, s 269(2)(a), maximum term of seven years’ imprisonment.

[2]R v Fugle [2021] NZDC 25140.

The relevant circumstances were described in the sentencing notes as follows:
[2]       The charge arose from an incident on 28 November 2020 when three officers of Horizons Regional Council travelled to a subdivision where you are involved in development work. They were there to carry out a compliance inspection. When they arrived, you were working on a small red digger some distance away from where they parked. They introduced themselves and advised you they were undertaking a compliance inspection. You acknowledged their presence but were somewhat dismissive towards them and then you continued working on that digger. Two of the officers moved further off into the development to carry out a ground inspection. The man that remained near the two vehicles was operating a drone from the back of one of them.
[3]       You then drove up to the vehicles in a yellow 20 tonne digger which had been parked some distance away when they arrived with the aim of using it to spread metal which had been unloaded at the entrance to a cul-de-sac opposite where the vehicles were parked. You asked the officer who was operating the drone to move the vehicles. He told you he could not because he had to wait until the drone landed and he said he would ring the officer who was in charge of the compliance inspection.
[4]       You became both agitated and abusive to that officer and to the other two when they returned, insisting that they move the vehicles and insisting that you carry on that work at that particular time, rather than doing something else until they finished with the drone and left.
[5]       The evidence at trial was that at one stage [you] were banging the bucket of the digger on the ground in an intimidating manner and at another point you swung the digger bucket over the vehicles and where the officers…

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 Fugle v The the Queen

Details

AGLC: Fugle v The the Queen [2022] NZCA 124
Case: [2022] NZCA 124
Decision Date: 11 April 2022 at 11.00 am

CaseChat Overview and Summary

Leslie William Fugle appealed against his conviction and sentence for intentional damage, which arose from an incident where the 20-tonne digger he was operating damaged the vehicle of Council officers who were undertaking a subdivision compliance inspection. The appeal was brought under section 244 of the Criminal Procedure Act 2011 and centred around the argument that the sentence was inappropriate or manifestly excessive. The appeal was dismissed by the Court of Appeal of New Zealand.

The primary legal issue in this appeal was whether the sentence imposed by the District Court was appropriate or manifestly excessive. The appellant argued that the sentence was inappropriate on three grounds: errors in the sentencing judgment, the appellant's level of culpability, and his personal circumstances. The Court of Appeal examined each of these arguments in turn and concluded that there was no material error in the Judge's reasoning and that the sentence was not manifestly excessive.

The Court of Appeal found that there was no error in the sentencing judgment, as the Judge had taken into account the appellant's offer of reparation and expressly reconsidered the appropriate length of community detention. Furthermore, the Court of Appeal held that the appellant's culpability warranted a sentence of community detention, as his conduct involved a high level of recklessness and there was a real risk to the safety of the Council officers. Finally, the Court of Appeal considered the appellant's personal circumstances, but concluded that a period of community detention was appropriate to reflect both deterrence and the denunciation of his conduct.

In conclusion, the Court of Appeal dismissed the appeal and upheld the sentence imposed by the District Court. The Court found that the nature and duration of the sentence clearly reflected the high level of recklessness which the appellant's conduct involved and was not manifestly excessive in the circumstances.

Orders