Furze v Police
[2019] NZHC 162
•14 February 2019
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 months in relation to the first driving incident.
[5] On the second, 6 July 2018, driving while disqualified offence Judge O’Driscoll also adopted a starting point of 12 months. This again reflected the
1 Police v Furze [2018] NZDC 21226 at [3] – [5].
aggravating factors of the breached release condition and the previous driving while disqualified offending. To this, His Honour added two months for dangerous driving and two months for failing to stop. Judge O’Driscoll held that these sentences were to be served cumulatively, resulting in a total starting point of 30 months’ imprisonment.
[6] Judge O’Driscoll then gave a discount of five months for Mr Furze’s early guilty plea, equivalent to a 16.66 per cent reduction. The end sentence imposed on Mr Furze was thus 25 months’ imprisonment.
Principles on appeal
[7] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “…court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4
Submissions
Appellant’s submissions
[8] Turning now to the submissions advanced before me today and appellant’s submissions, the appellant argued that his sentence was manifestly excessive because the District Court Judge adopted a starting point that was too high, that the Judge failed to make a downwards adjustment for totality, that the Judge failed to take account of Mr Furze’s personal mitigating circumstances and that he erred in not providing for a higher discount for Mr Furze’s early guilty plea.
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
4 Ripia v R [2011] NZCA 101 at [15].
[9] Ms Barrell, counsel for the appellant, submitted that a starting point of 12 months was too high having regard to comparable decisions. In the first case she has cited Iwikau v Police, a starting point of 10 months for a seventh driving whilst disqualified charge and related failure to stop charge was upheld in this Court by Williams J.5 Counsel highlighted Williams J’s comment that “the starting point was at the top of the allowable range”.6
[10] Counsel also cited the decision in Peterson v Police, where a starting point of 10 months was upheld by Duffy J on appeal for a sixth driving whilst disqualified offence.7 Finally, counsel before me cited Opetaia v Police where Moore J upheld a starting point of 10 months for fifth to eighth driving while disqualified offences, where His Honour also described that 10 months as being “at the top of the range”.8
[11] In light of these cases, Ms Barrell submitted that in relation to both sets of driving offending starting points of between nine and ten months were more appropriate.
[12] Additionally, she suggested the 30 months starting point in total adopted by the Judge was excessive having regard to the totality of the offending, and as such the starting point should have been adjusted downwards pursuant to the totality requirements set out at s 85 of the Sentencing Act.
[13] Ms Barrell further submitted that Judge O’Driscoll failed to take into account a personal mitigating circumstance of Mr Furze, as he was required to do by s 10(1)(e). She said that Mr Furze’s motivation to attend drug and alcohol intervention courses, his engagement with Problem Gambling and his attendance at mental health treatment sessions amounted to “remedial action” under s 10(1)(e).
[14] In relation to the early guilty plea discount given by Judge O’Driscoll, counsel submitted the discount given was insufficient. That five month discount from the 30 month starting point equated to a 16.66 discount, as I have noted already. Instead,
5 Iwikau v Police [2013] NZHC 2515.
6 At [15].
7 Peterson v Police (HC) Hamilton CRI-2009-419-11, 20 February 2009.
8 Opetaia v Police [2015] NZHC 2532 at [38].
counsel submitted a 25 per cent discount in accordance with the decision in Hessell,9
was more appropriate.
[15] Finally, if this Court was to find that a starting point of less than 24 months should be preferred and this appeal be allowed, counsel submitted that Mr Furze should be considered for a sentence of home detention.
Respondent’s submissions
[16] Turning now to the respondent’s submissions, Mr White for the respondent contended that the cases cited in support of Mr Furze’s appeal in fact demonstrate that a 12 month starting point was within the appropriate range. Mr White identified that Judge O’Driscoll considered as aggravating factors that this offending occurred in breach of Mr Furze’s release conditions and was his sixth conviction for this type of offending, and that these factors justified a 12 month starting point in light of the cases cited.
[17] Similar to the first incident in question, counsel here highlighted in relation to the second incident, that Judge O’Driscoll appears to have taken into account the fact that the offending occurred again while Mr Furze was on bail and had treated this as an aggravating factor. Mr White argued that justified a starting point of 12 months for the driving while disqualified charge.
[18] In relation to Mr Furze’s totality submission, Mr White for the respondent submitted a totality adjustment here would be inappropriate because Mr Furze has a history of failing to comply with court orders, demonstrated again in the offending in this case, and as such an overall starting point of 30 months for both sets of offending was not wholly disproportionate.
[19] Mr White also submitted that the Judge was correct in not making a discount for Mr Furze’s rehabilitative steps as His Honour was justified in viewing these steps with scepticism given Mr Furze’s history. Counsel noted that s 10(2)(a) requires the court to take into account whether or not any remedial action was “genuine”.
9 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[20] On the issue of the discount for an early guilty plea, the respondent’s position is that a five months discount was appropriate because the prosecution case was strong, and as such a full 25 per cent discount in all the circumstances here would be inappropriate.
Analysis
Starting point for offending relating to first driving incident
[21] Turning to my analysis in this matter and the starting point for offending relating to the first driving incident, in Peterson v Police, a starting point of 10 months was adopted for driving while disqualified as I have noted. In that case Duffy J stated that there were no aggravating features particular to the offending.10 Similarly, in the decision in Iwikau,11 there was no comparable aggravating factor of breaching release conditions as in the present case. Both of these cases involved sentencing in relation to the defendants’ seventh driving while disqualified charges. In this case, a two months premium on the starting point, in my view, is appropriate and not disproportionate to reflect the aggravating nature of the offending breaching release conditions and otherwise. A 12 months starting point for the first driving while disqualified charge is thus not manifestly excessive, in my view, and it should remain undisturbed.
Starting point for offending relating to second driving incident
[22] The second driving while disqualified charge shares a similar aggravating feature to the first; this is again that the offending occurred while Mr Furze was on bail. Thus, for similar reasoning to the analysis justifying a 12 months starting point for the first driving while disqualified charge, a 12 months starting point on this second charge, the circumstances of which are also serious, was also appropriate and open to the Judge.
10 Peterson, above n 7, at [9].
11 Iwikau v Police, above n 5.
Totality adjustment
[23] Turning now to a totality adjustment, adjustments for totality are not automatic and I refer to the Court of Appeal decision in Ashcroft v R.12 A totality adjustment is only required when the end sentence is “wholly out of proportion to the gravity of the offending”.13 In the present case, the second driving while disqualified offence was committed by Mr Furze whilst he was on bail for the first driving while disqualified charge. The circumstances of that second set of offending are also, in my view, particularly serious. Mr Furze too has a history of failing to comply with court orders, and that second driving incident only serves to highlight this. This does not suggest a low overall gravity for all offending. Thus, there is nothing to suggest, in my view, that a 30 months starting point for both sets of driving incidents is “wholly disproportionate” to this overall offending, offending which must be seen as serious given Mr Furze’s propensity to ignore court orders.
Personal mitigating circumstances
[24] Turning now to the issue of personal mitigating circumstances, Judge O’Driscoll, in my view, was entitled to decline to give Mr Furze a discount for the “remedial actions” he has taken. I say this given Mr Furze’s history of non- compliance with court orders which suggests he may lack a genuine desire to remediate his behaviour through rehabilitative courses.
Early guilty plea discount
[25] Turning now to the early guilty plea discount, in Hessell, the Supreme Court said that credit given for an early guilty plea:14
must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case.
12 Ashcroft v R [2014] NZCA 551 at [32].
13 Above n 12, at [32].
14 Hessell, above n 9, at [74].
[26] In the present case, the Judge, in my view, was entitled to allow a discount of less than the full 25 per cent to take account of the strength of the prosecution case. The 16.66 per cent discount he gave is appropriate in all the circumstances here.
Conclusion
[27] In conclusion and for all the reasons I have outlined above, Mr Furze’s appeal is refused in its entirety. The sentence is not manifestly excessive and the Judge’s decision was justified in all respects. This appeal is dismissed.
...................................................
Gendall J
Solicitors:
Michelle Barrell & Associates, Barrister & Solicitors, Christchurch Raymond Donnelly & Co, Christchurch
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