Gordon v Police

[2023] NZHC 2053

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-106

[2023] NZHC 2053

UNDER

the Criminal Procedure Act 2011

IN THE MATTER

of an appeal against sentence

BETWEEN

JADE HENRY GORDON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

27 July 2023

Appearances:

A J Greaves for Appellant

C M Hallaway for Respondent

Judgment:

4 August 2023

JUDGMENT OF OSBORNE J

Introduction

[1]        Jade Gordon appeals sentences imposed on him in the District Court in June 2023.1

[2]Mr Gordon pleaded guilty to charges of:

(a)assaulting police (x 2);2

(b)resisting police;3

1      Police v Gordon [2023] NZDC 11709.

2      Crimes Act 1961, s 192(2) – maximum penalty: three years’ imprisonment.

3      Summary Offences Act 1981, s 23(a) – maximum penalty: three months’ imprisonment or fine not exceeding $2000.

GORDON v NEW ZEALAND POLICE [2023] NZHC 2053 [4 August 2023]

(c)driving while disqualified (third or subsequent);4

(d)driver giving false information as to own identity;5 and

(e)escaping police custody.6

[3]Judge Couch sentenced Mr Gordon:

(a)in relation to an incident on 22 January 2023 (the January charges):

(i)assaulting police (2 x) — four months’ imprisonment (2 x); and

(ii)resisting police — one month’s imprisonment.

(b)in relation to an incident on 24 March 2023 (the March charges):

(i)disqualified    driving    —    one    year    and    eight    months’ imprisonment;

(ii)escaping custody — six months’ imprisonment; and

(iii)false identity information —disqualification only.

[4]        All sentences other than the false information sentence were ordered to be served concurrently.

[5]The Judge, in relation to periods of disqualification, ordered:

(a)on the disqualified driving charge — disqualification for one year from 7 August 2023;

4      Land Transport Act 1998, s 32(1)(a) and 32(4) – maximum penalty: two years’ imprisonment or fine not exceeding $6000 and mandatory 12-month disqualification.

5      Sections 52A(1)(c), 52A(4), 52A(6) & 114(3)(b) – maximum penalty: $10,000 fine and mandatory 12-month disqualification.

6      Crimes Act, s 120(c) – maximum penalty: five years’ imprisonment.

(b)on the false information charge — two years’ disqualification, cumulative on the previous disqualification (that is, commencing from 7 August 2024).

[6]        Additionally, the Judge issued a notice under s 129B Sentencing Act 2002 to the owner of the motorcycle referred to in the March charges.

[7]        Mr Gordon appeals the total length of the imprisonment sentence on the grounds:

(a)the total is manifestly excessive; and

(b)there were errors in the calculation of the sentences imposed.

[8]        Mr Gordon also appeals the second disqualification period (imposed on the false information charge) on the basis it was incorrectly set at two years instead of one year.

[9]        The Crown concedes the end sentence of imprisonment was manifestly excessive and the appeal should be granted.

[10]      The Crown also recognises the second disqualification period was incorrectly set at two years.

Facts

The January charges

[11]      At around 2.15 am on 22 January 2023, Mr Gordon was at the Ibis Hotel in Christchurch when police were called due to a dispute between him and his partner. It was established  his  contact  was  in  breach  of  bail  conditions.  Police  advised  Mr Gordon he was under arrest and placed a handcuff on his right wrist. He lunged forward and dragged the constables into the entrance way of the room, causing them to fall to the ground.

[12]      During an ensuing struggle, Mr Gordon was on the ground with his face down as one of the constables attempted to restrain him. Mr Gordon lashed out with his elbow, striking one of the constables hard in the chest three times. At the same time, Mr Gordon kicked out with both legs, striking the other constable on the left shin.  Mr Gordon continued to try to attack both officers. They were eventually able to deploy pepper spray and arrest Mr Gordon.

[13]      He appeared in court on the resulting charges on 23 January 2023 and was bailed on a number of conditions.

The March charges

[14]      On 22 August 2022, Mr Gordon had been disqualified from driving for one year. On 24 March 2023, he was driving a motorcycle on Ferry Road, Christchurch when he was stopped for not having any lights on the vehicle.

[15]      When asked to provide identification, Mr Gordon provided the name “Jonothan Gordon”. He did not provide his birth date, stating he had forgotten it. Further checks established Mr Gordon’s true identity and that he was in breach of his bail conditions. He was told he was under arrest. He began to run away from the officer along the footpath. He then turned and charged towards the officer. He was tasered and arrested.

The District Court decision

[16]      The Judge took the driving while disqualified as the lead charge because of Mr Gordon’s history (nine previous convictions for driving while disqualified or suspended, four of which had been entered in the previous 18 months). The giving of false information was treated as an aggravating factor. The Judge adopted a starting point of 16 months’ imprisonment for the disqualified driving and false information charges. The Judge then applied an uplift of four months’ imprisonment for the escaping custody charge.

[17]      The Judge then considered the 22 January offending. He noted it involved a total failure on Mr Gordon’s part to accept the authority of the police. Mr Gordon, in

explanation, said he believed the charges on which he was bailed had been withdrawn. The Judge observed the charges on which he had been bailed had not been withdrawn but took into account that was what Mr Gordon was thinking. The Judge took a starting point of five months’ imprisonment for the three January charges.

[18]      The resulting (combined) starting points for all charges was 25 months’ imprisonment, which the Judge adjusted to 21 months for totality.

[19]      The Judge identified one personal aggravating factor, naming Mr Gordon’s offending while on bail in express breach of his bail terms. The Judge imposed an uplift of 15 per cent for that (but no uplift for previous offending).

[20]      The Judge then considered personal mitigating factors. He noted Mr Gordon’s prompt guilty pleas on the lead charges and allowed a discount of 22 per cent for this. Implicitly, as confirmed by counsel at this hearing, the Judge approached the discount by reference to a full 25 per cent discount on the lead charges and 20 per cent for the deferred guilty pleas on the other charges.

[21]      The Judge then referred to an alcohol and drug assessment report provided by a clinician at ADAS. The clinician, upon the basis of interviewing Mr Gordon and accessing his medical records, concluded Mr Gordon had an established dependence on methamphetamine, cannabis and alcohol, all of which were in remission following his imprisonment. The clinician recommended that Mr Gordon engage in a longer- term programme (through Odyssey House, of which ADAS was a service) to address not only Mr Gordon’s substance use but other underpinning factors, related to a lack of meaning and structure when Mr Gordon is within the community. The longest time Mr Gordon (32 years old at the time of the report) had been in the community in recent years was 10 months.

[22]      In an “addiction history” addendum to the ADAS report, the clinician referred to disadvantages in Mr Gordon’s early upbringing. Those included a mother who grew and dealt in cannabis and a father who was a member of Black Power. Mr Gordon engaged in little formal schooling, coming to reside in state care and becoming “self-

taught” after being excluded from schools. His medical records refer to physical and sexual abuse in the home.

[23]      While Mr Greaves had submitted to the Judge that the longstanding methamphetamine addiction in particular was highly relevant and causative of the offending, the Judge found nothing in the material before the Court to establish a causal connection. The Judge also referred to the prohibition under s 9(3) Sentencing Act (whereby the Court must not take into account by way of mitigation the fact the offender was at the time of committing the offence affected by the voluntary consumption or use of alcohol, drugs or other substances).

[24]      With the 15 per cent uplift and the 22 per cent discount (seven per cent net) the Judge recorded that led to an endpoint of around 20 months’ imprisonment.7

[25]      It was noted that Mr Gordon would benefit from residential rehabilitation for his drug problem and, on that basis, the Judge granted leave to apply for substitution of sentence.

Principles on appeal

[26]      Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.8 As the Court of Appeal identified in Tutakangahau v R (quoting the lower court’s decision), a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.10

7      The implicit mathematics was “21 months x 7 per cent equals 19.53 months”). Both counsel initially suggested at this hearing the correct calculation should have been 18.83. That suggestion involved an incorrect application of the methodology in Moses v R [2020] NZCA 296 which requires (as the Judge did) a two-step, not three-step, sequence.

8      Criminal Procedure Act 2011, s 250(2) and 250(3).

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

10 Ripia v R [2011] NZCA 101 at [15].

Submissions

Appellant

[27]      Mr Greaves, for Mr Gordon, submitted the sentences imposed were manifestly excessive, resulting from three errors:

(a)incorrect uplift and discount adjustments were made;

(b)no credit was given for addiction and personal mitigating factors; and

(c)Mr Gordon’s false information charge was treated as his third qualifying conviction instead of his second.

[28]      The Judge’s starting point on the disqualified driving and the false information charges was 16 months. The Judge had regard to the nine previous convictions (including four recent) to find the gravity of the offending as being “near the most serious” and therefore requiring the sentence to be near the maximum. Mr Greaves submitted the Judge erred in treating the disqualified driving offending as “near the most serious”. Mr Greaves referred to three cases:

(a)Ross v Police11 — this  Court  upheld  a  starting  point  sentence  of 12 months’ imprisonment where Mr Ross had eight previous convictions (including five recent) for disqualified driving and had provided false particulars;

(b)Beattie v Police12 — a case in which the District Court Judge had adopted a starting point of 10 months’ imprisonment on an 11th driving whilst disqualified charge, uplifted by five months to take account of previous convictions (including disqualified driving convictions). This Court upheld the global starting point of 15 months’ imprisonment as at the “upper level” of the range, citing Fataiki v Police.13 The starting point was set at 15 months’ imprisonment;

11     Ross v Police [2017] NZHC 2012.

12     Beattie v Police [2022] NZHC 2673.

13     Fataiki v Police [2021] NZHC 3446 at [28]; and Opetaia v Police [2015] NZHC 2532 at [36].

(c)Lambert v Police14 — this Court upheld, albeit as “stern”, a starting point of 18 months’ imprisonment where Mr Lambert had 11 previous convictions on driving while disqualified charges.15

[29]      Against this background, Mr Greaves submitted an appropriate starting point was 13 months’ imprisonment rather than the 16 months adopted.

[30]      Turning to considerations of personal mitigating factors, Mr Greaves submitted the Judge erred in concluding there was not a nexus between Mr Gordon’s personal background and the offending.

[31]Mr Greaves noted in particular:

(a)there has been a history of addiction that has  led to  turbulence  in  Mr Gordon’s life, contributing to conduct that has repeatedly brought him before the Court (including, a short time before the present charges, family violence charges which were subsequently withdrawn);

(b)Mr Gordon had at the time of the present offences a misunderstanding in relation to the status of the withdrawal of those charges which led to his response to the police; and

(c)although he was mistaken as to the timing of the withdrawal of the charges, he had proceeded on the basis of the withdrawal.

[32]      Mr Greaves noted the Supreme Court in Berkland v R clarified it is sufficient (for mitigation purposes) that background factors have a causative contribution in relation to the offending, whether or not they can be described as operative or proximate causes.16

[33]      Mr Greaves submitted the Judge’s decision did not contain any analysis of the childhood disadvantages suffered by Mr Greaves, the contribution for instance that his

14     Lambert v Police [2022] NZHC 49.

15     At [18]–[21].

16     Berkland v R [2022] NZSC 143 [2022] 1 NZLR 509 at [109].

placement in state care will have had, and the continuing addiction problems identified in the reports.

[34]      Mr Greaves submitted a discount of 20 per cent would have been appropriate to account for these aspects.

[35]      Mr Greaves accepted the Judge’s uplifts of four months and five months (above at [15] and [16]) were appropriate.

[36]      Mr Greaves accordingly submitted the existing total sentence of 20 months’ imprisonment should be cancelled and replaced with a sentence of approximately

12.5 months’ imprisonment.17

[37]      Finally, turning to the periods of disqualification, Mr Greaves identified that, whereas the false information charge led to Mr Gordon’s second conviction for such an offence, the Judge treated it as a third or subsequent qualifying offence.

[38]      As Mr Gordon was charged with a second offence pursuant to s 52A(1)(c) Land Transport Act 1998, the penalty prescribed was one year’s disqualification.18

Crown

[39]      For the Crown, Ms Hallaway acknowledged the end sentence of 20 months’ imprisonment imposed was manifestly excessive. In her submission, a sentence of approximately 16.5 months’ imprisonment should be substituted.

[40]In reaching that point, Ms Hallaway submitted:

(a)the Judge’s starting point (on the disqualified driving and false information charges), whilst possibly stern, was not excessive; and

(b)there was an error in relation to personal mitigation in that matters in Mr Gordon’s past, as referred to in the ADAS report, were causally

17     The discount calculation being 22 months x 42 per cent = 9.24 months, deducted from 22 months

= 12.5 months.

18     Land Transport Act 1998, ss 52A(2) and (4).

connected to Mr Gordon’s offending and warranted a discount in the vicinity of 10 per cent.

[41]      Ms Hallaway also acknowledged that the decision in relation to disqualification periods involved a mistake as to the nature of the false information conviction, and a one-year disqualification period should have been imposed on that conviction.

Decision

[42]      Notwithstanding the Crown’s concessions, I consider the issues as to error and whether the ultimate sentence was “manifestly excessive” for myself.

[43]      Given Mr Gordon’s driving history, it was appropriate for the Judge to treat the disqualified driving charge as the lead charge.

[44]      When the cases discussed by both counsel (above at [28]) are considered alongside the facts relating to Mr Gordon’s disqualified driving and false information charges, the starting point of 16 months cannot be considered outside the range. The maximum penalty on the disqualified driving charge was two years’ imprisonment or a $6,000 fine. The maximum penalty on the false information charge was a fine of

$10,000. Fifteen months was upheld by Eaton J in Beattie upon the basis that it was at the top of the range (for an eighth driving while disqualified conviction) but without other aggravating features.19 Here, Mr Gordon’s offending was aggravated by his providing false information.

[45]      Similarly, in Lambert, Cook J upheld (albeit as “stern”) the starting point of 18 months when Mr Lambert had 11 previous convictions, the offending not being affected by the giving of false information or similar offending.

[46]      The  appellant  has  not  demonstrated  that  the  Judge’s  starting  point  of  16 months’ imprisonment involved an error.

19     Beattie v Police, above n 12, at [34]; citing Fataiki v Police, above n 13, and Opetaia v Police, above n 13.

[47]      That said, I am satisfied the Judge erred by rejecting any relevant connection between matters in Mr Gordon’s background and the offending. It was not suggested for Mr Gordon that consumption of methamphetamine (or other drugs) affected him in his conduct on the two days in question. The basis of the submission as to mitigating circumstances lay in matters raised in reports as to disadvantages stemming from childhood (including drug taking in the household and entry into state care) that have led to a history of substance abuse affecting his ability to pro-socially engage in the community.

[48]      Mr Gordon must nevertheless accept a substantial level of responsibility for his own decision-making at the time of the two sets of offences.

[49]      In these circumstances, a discount in sentence to reflect matters of personal mitigation should have been given. I accept, in line with the Crown’s submission, that an appropriate level of discount would have been 10 per cent.

[50]      Applying these findings to the other components leading to the calculation of Mr Gordon’s sentences, the resulting sentence length is indicated in the following table:

TABLE

Starting points
Disqualified driving and false information	16 months
Escaping custody	Four months
January charges	Five months
Subtotal	25 months
Net for totality	21 months
Adjustments for personal factors
Offending while on bail	15 per cent
Early guilty pleas	22 per cent
Personal background	10 per cent
Subtotal	32 per cent
Net discount	17 per cent

Calculation (Moses) — 21 months less 17 per cent equals 17.43 — say 17 months.

[51]      Standing back, I find the sentence imposed (on the disqualified driving charge) of 20 months’ imprisonment to be manifestly excessive. I do not consider the same can be said of any of the sentences imposed on the lesser charges.

[52]      That leaves for consideration the disqualification period imposed in relation to the false information charge. For the reasons identified by both counsel, the disqualification of two years was incorrectly imposed.

Outcome

[53]I order:

(a)the appeal is allowed;

(b)the sentence of one year and eight months’ imprisonment on the disqualified driving charge is quashed;

(c)on the disqualified driving charge, a sentence of one year and five months’ imprisonment is substituted;

(d)the disqualification on the false details charge is quashed; and

(e)on the false details charge, there is in substitution an order disqualifying the appellant from holding or obtaining a driver’s licence for a period of one year commencing on 7 August 2024.

[54]      For the avoidance of doubt, the date at which Mr Gordon will become eligible to apply for a driver’s licence again will be 7 August 2025 (not the date of August 2026 referred to in the decision).

Osborne J

Solicitors:

Crown Solicitor, Christchurch

Copy to:
A J Greaves, Christchurch