Furze v Police - [2019] NZHC 162

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000106

[2019] NZHC 162

BETWEEN
BENJAMIN SIMON FURZE

Appellant

AND

NEW ZEALAND POLICE

DEPARTMENT OF CORRECTIONS

Respondents

Hearing: 14 February 2019

Appearances:

M A Barrell for Appellant C C White for Respondent

Judgment:

14 February 2019

ORAL JUDGMENT OF GENDALL J

Introduction

[1] On 5 October 2018 Judge O’Driscoll in the District Court sentenced the appellant Benjamin Furze to 25 months’ imprisonment and provided for an 18 months licence disqualification on driving offending and breach of release conditions. Mr Furze was convicted of two charges of driving while disqualified (possibly an eighth charge), one charge of drink-driving, one charge of dangerous driving, one charge of failing to stop, and one charge of breaching release conditions. Mr Furze appeals his sentence on the basis that it was too high and not in conformity with similar cases, that the Judge failed to give Mr Furze credit for personal mitigating factors and that the Judge erred in not applying a higher discount for Mr Furze’s early guilty plea.

FURZE v NEW ZEALAND POLICE [2019] NZHC 162 [14 February 2019]

Facts

[2] Turning to the facts in this appeal, on 8 June 2018 at about 5:15 a.m. Mr Furze was stopped by Police on Cashel Street, Christchurch, while driving and was discovered to be driving with an evidential breath test reading of 556 micrograms of alcohol per litre of breath. At the time, Mr Furze was on parole having been released on 31 January 2018 with a condition that he not consume alcohol. Thus, Mr Furze was charged with drink-driving and with breaching release conditions. He was granted bail by the District Court.

[3] Less than one month later, at 5:04 a.m. on 6 July 2018, Mr Furze was driving again on Cashel Street, Christchurch, when Police attempted to stop him by activating a police car’s lights and siren. In response, Mr Furze accelerated away, reaching speeds of up to 90km/h on residential streets in Christchurch and crossing over traffic islands as he went. Mr Furze ran over spikes deployed by police, bursting a tyre of his car causing him to mount the curb. He then came to a stop by running into a brick fence. He attempted to continue to flee Police on foot, but was apprehended and arrested.

District Court decision

[4] Turning now to the District Court decision, Judge O’Driscoll there approached sentencing by adopting a starting point for the offending relating to the two separate driving incidents. On the first charge of driving while disqualified on 8 June 2018, His Honour adopted a starting point of 12 months’ imprisonment. In reaching this starting point, the Judge considered that the offending amounted to a breach of Mr Furze’s release conditions, and that this was his seventh offence of driving while disqualified as aggravating factors.1 Judge O’Driscoll then gave an uplift of two months for the drink-driving offence, giving a starting point of 14…

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.

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Details

Case: [2019] NZHC 162
Decision Date: 14 February 2019

CaseChat Overview and Summary

The High Court of New Zealand was called upon to determine an appeal by Benjamin Simon Furze against his sentence imposed by the District Court. The appellant was convicted of multiple charges including driving while disqualified, drink-driving, dangerous driving, failing to stop, and breaching release conditions. Furze appealed his 25-month imprisonment sentence, arguing that it was excessively high and not in line with similar cases. He further contended that the District Court failed to give him credit for personal mitigating factors and erred in not applying a higher discount for his early guilty plea.

The court considered the arguments put forth by both parties. The appellant argued that the starting point for his sentence was too high and that a lower starting point of nine to ten months would be more appropriate. He also claimed that the total starting point of 30 months for both sets of driving incidents was excessive and should have been adjusted downwards in light of the totality of the offending. Furthermore, he asserted that the District Court failed to take into account his personal mitigating circumstances and erred in not providing a higher discount for his early guilty plea.

The respondent argued that the starting point of 12 months for each set of driving while disqualified charges was justified given the aggravating factors of breaching release conditions and the appellant's history of similar offending. The respondent also contended that a totality adjustment was inappropriate because the appellant had a history of failing to comply with court orders, and thus, the overall starting point of 30 months was not disproportionate. Finally, the respondent argued that the appellant's rehabilitative efforts should not be taken into account because his history of non-compliance with court orders suggested a lack of genuine desire to remediate his behavior.

After considering the submissions and relevant case law, the court concluded that the District Court's sentence was not manifestly excessive and was justified in all respects. The court found that the starting point of 12 months for each set of driving while disqualified charges was appropriate given the aggravating factors present in the case. The court also found that a totality adjustment was not required because the overall gravity of the offending was high, and the appellant had a history of failing to comply with court orders. Finally, the court held that the District Court was entitled to decline to give the appellant a discount for his rehabilitative efforts because of his history of non-compliance with court orders. The court therefore dismissed the appeal in its entirety.

The final orders of the court were that the appellant's appeal against his sentence was dismissed, and the original sentence imposed by the District Court was upheld.

Orders