Gunn v Police

[2014] NZHC 356

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2014-443-000005 [2014] NZHC 356

BETWEEN  JULIAN GUNN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   4 March 2014

Counsel:                  K M Marriner for Appellant

B C Sweetman for Respondent

Judgment:                4 March 2014

JUDGMENT OF COLLINS J

Introduction

[1]      The question I have to consider is whether, when imposing a total sentence of two years’ imprisonment on Mr Gunn, the District Court made an error, and if so, whether a different sentence should be imposed.1

[2]      This question arises because Mr Gunn has appealed cumulative sentences imposed on him by Judge Roberts in the Hawera District Court on 15 January 2014. The  sentences  were  imposed  after  Mr  Gunn  pleaded  guilty  to  three  charges. Mr Gunn was sentenced to:

(1)       Twelve months’ imprisonment for perverting the course of justice.2

1      Criminal Procedure Act 2011, s 250(2)(a) and (b).

2      Crimes Act 1961, s 116. Maximum penalty is seven years’ imprisonment.

GUNN v NEW ZEALAND POLICE [2014] NZHC 356 [4 March 2014]

(2)       Twelve  months’ imprisonment  for driving  while disqualified  on  a

third or subsequent occasion.3

As these sentences were imposed cumulatively, Mr Gunn’s total prison sentence was

24 months.

[3]      A third charge, breaching prison release conditions, was also dealt with by Judge Roberts on 15 January 2014.   Mr Gunn was sentenced to one month’s imprisonment in relation to that matter.  That sentence was a concurrent sentence and has not been appealed.

Background

Perverting the course of justice

[4]      On  13  August  2013,  Mr  Gunn  supplied  a  letter  for  his  co-offender, Mr Marriner, who was appearing in the Hawera District Court on other matters.  The letter said Mr Marriner was employed by a company called HRV.   The presiding Judge asked Mr Marriner’s lawyer to telephone HRV to confirm Mr Marriner was indeed employed by that company.  It would appear Mr Gunn answered the lawyer’s telephone call and later, the lawyer confirmed to the presiding Judge Mr Marriner was employed by HRV.

[5]      As  a  result  of  his  being  satisfied  that  Mr  Marriner  was  employed,  the District Court Judge imposed a sentence of community work instead of the prison sentence that had previously been indicated.

[6]      Mr Gunn admitted his letter was fictitious.  He said he wrote the letter and pretended to be a director of HRV so Mr Marriner would avoid going to prison.

Driving while disqualified

[7]      Mr Gunn has seven previous convictions for driving while disqualified.  His last previous conviction for driving while disqualified occurred on 1 August 2012,

3      Land Transport Act 1998, s 32(1)(a) and (4). Maximum penalty is two years’ imprisonment.

when he was disqualified from holding or obtaining a driver’s licence for 12 months

from 9 May 2013.

[8]      On 24 December 2013, Mr Gunn was stopped by police while driving near Patea.   He admitted he was a disqualified driver and explained he was driving to Levin.

Judge Roberts’ decision

Perverting the course of justice

[9]      Judge  Roberts  appears  to  have  adopted  a  starting  point  of  18  months’

imprisonment and identified the following aggravating factors:

(1)       The offending impacted on the sentence imposed on Mr Marriner;

and

(2)The offending involved  both  Mr Gunn and  Mr Marriner working together to achieve a more lenient sentence for Mr Marriner.

[10]     Judge Roberts gave a discount to reflect the totality of Mr Gunn’s offending and  his  guilty plea.   These discounts  produced  an  end  sentence  of  12  months’ imprisonment.

Driving while disqualified

[11]     Judge Roberts adopted a starting point of 10 months’ imprisonment.   He

identified the following aggravating features:

(1)       This was Mr Gunn’s eighth conviction for driving while disqualified.

(2)       Mr Gunn’s offending occurred 16 months after the last time he drove

while disqualified.

(3)Mr Gunn appeared to have been undeterred by previous sentences including prison sentences for driving while disqualified.

(4)This offending occurred while Mr Gunn was still subject to conditions following his release from prison.

[12]     The Judge imposed a six month increase to the starting point to reflect:

(1)      Mr Gunn’s previous convictions for driving while disqualified;  and

(2)the  fact  that  this  offending  occurred  while  he  was  waiting  to  be sentenced on the perverting the course of justice charge.

[13]     Judge Roberts gave Mr Gunn a 25 per cent reduction to reflect his guilty plea.

This produced an end sentence of 12 months’ imprisonment.

[14]     Judge Roberts directed that both sentences be served cumulatively thereby producing a total sentence of 24 months’ imprisonment.

Legal principles governing an appeal

[15]     Prior to the commencement of the Criminal Procedure Act 2011, appeals against sentence were governed by s 121 of the Summary Proceedings Act 1957. Section 121(3)(b) of the Summary Proceedings Act 1957 allowed the High Court to quash a sentence imposed by the District Court where it was found that the sentence was:

... one which [was] clearly excessive or inadequate or inappropriate, or if the High Court [was] satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the court imposing sentence ...

Appeals under s 121(3)(b) of the Summary Proceedings Act 1957 were normally allowed  if  the  High  Court  was  satisfied  that  the  sentence  imposed  by  the District Court was “manifestly excessive”.4    While the Court was cautious before interfering with the discretion of the sentencing judge, there was a need to maintain

consistency in sentences imposed for similar types of offending.5

4      R v Brooks [1950] NZLR 658 (CA).

5      Police v Sutherland HC Wellington CRI-2006-435-1, 27 June 2006 at [16]; R v Pawa [1978]

2 NZLR 190 (CA).

[16]     Section  250  of  the  Criminal  Procedure Act  2011  now  governs  sentence appeals from the District Court to the High Court.  Section 250(2) of the Criminal Procedure Act 2011 provides:

(2)      The first appeal court must allow the appeal if satisfied that—

(a)      for any reason, there is an error in the sentence imposed on conviction;  and

(b)      a different sentence should be imposed.

[17]     Not every error in a sentence will provide the foundations for a successful appeal.     The  types  of  error  that  are  contemplated   by  s  250(2)(a)  of  the Criminal Procedure Act 2011 include:

(1)       errors of law;

(2)failing to take account of or not giving sufficient weight to relevant factors;

(3)       taking account of irrelevant factors;  and

(4)committing an error of principle, such as adopting a starting point that is disproportionately high.

[18]     A different sentence should be imposed when the appellate Judge believes a different type of sentence should be imposed or the length of the sentence should be altered, but not in a way that amounts to a minor adjustment.

[19]     In summary, I proceed on the basis that I can only allow Mr Gunn’s appeal if I am satisfied that there is an error in the sentence which Judge Roberts imposed and that a different sentence should be imposed.

[20]     In undertaking my task, I shall examine:

(1)       the  starting  point  that  should  have  been  imposed  for  Mr  Gunn’s

offending;

(2)what   adjustments   should   be   made   to   reflect   aggravating   and mitigating factors relevant to Mr Gunn;6   and

(3)       what adjustments should be made to reflect the totality of Mr Gunn’s

offending.

Starting points

[21]     In this section I shall examine the starting points Judge Roberts imposed and approach the matter on the basis of whether or not the adopted starting points for the sentences for the two offences were wrong.7

Driving while disqualified

[22]     Judge Roberts appeared to settle upon the 10 months’ starting point because

of the number of previous convictions Mr Gunn had for driving while disqualified.

[23]     However, as was explained by Woodhouse J in Tua v Police it is important for a sentencing Judge to adopt a starting point which reflects all aspects of the offending rather than the bare number of previous convictions which the offender has for driving while disqualified.8

[24]     The   10   months’  prison   sentence   adopted   as   the   starting   point   by Judge Roberts does appear to be out of proportion to sentences for offending of this type that have been imposed in similar circumstances.9

[25]     The  authorities  that  I  have  examined  and  which  are  summarised  by

Woodhouse J in Tua v Police indicate that a starting point for Mr Gunn’s sentence for this offending would have been a six months’ prison sentence.

6      R v Taueki [2005] 3 NZLR 372 (CA).

7      R v MacCulloch CA150/04, 13 September 2004.

8      Tua v Police [2013] NZHC 2994 at [15].

9      Tua v Police, above n 8; Kauhou v Police [2014] NZHC 140.

Perverting the course of justice

[26]     Judge  Roberts  adopted  a  starting  point  of  18  months’ imprisonment  in relation to the charge of perverting the course of justice.  However, when regard is had to R v Churchward10 and Buchanan v Police,11 it is apparent that the appropriate starting point for this offending was a sentence of 12 months’ imprisonment.  That starting point would have been more consistent with the leading authorities on sentences for perverting the course of justice.

[27]     I am satisfied the approach Judge Roberts took when setting the starting point for both offences was erroneous because he failed to attempt to settle on a sentence that was consistent with sentences imposed on similar offenders in similar circumstances.12

Aggravating factors

[28]     Judge Roberts increased Mr Gunn’s provisional prison sentence for driving while disqualified by six months to reflect what he considered to be two aggravating features, namely:

(1)       Mr Gunn’s previous convictions.

(2)The fact Mr Gunn offended while he was on bail awaiting sentence in relation to the perverting the course of justice charge.

[29]     An  increase  to  a  starting  point  of  a  sentence  is  justified  to  reflect  a

defendant’s previous convictions13  and where a defendant offends while on bail.14

However, care needs to be taken to avoid unfairly punishing a defendant twice for earlier offending.

[30]     In this case, the 50 per cent uplift to the starting point to reflect Mr Gunn’s

earlier offending and the fact that his offending occurred while he was on bail was a

10     R v Churchward CA439/05, 2 March 2006.

11     Buchanan v Police HC Rotorua CRI-2008-470-26, 27 August 2008.

12     Sentencing Act 2002, s 8(e).

13     Section 9(1)(j).

14     Section 9(1)(c).

disproportionate response and was an error in sentencing principle.  In my judgement there should have been an increase in the provisional sentence of approximately

20 per cent (two months) to reflect Mr Gunn’s prior convictions for driving while disqualified and the fact that he offended while on bail.

[31]     There are no aggravating factors relevant to the perverting the course of justice charge.

Mitigating factors

[32]     Judge Roberts was correct when he reduced Mr Gunn’s prison sentence by

25 per cent to reflect his early guilty pleas.

[33]     Applying the same discount to the sentence that I have calculated, Mr Gunn’s provisional sentence would be 15 months’ imprisonment.

[34]     Those sentences would comprise:

(1)       Six months’ imprisonment for driving while disqualified.

(2)      Nine months’ imprisonment for perverting the course of justice.

These sentences would be cumulative.

Totality

[35]     Judge Roberts was correct when he concluded that the sentences for driving while disqualified and perverting the course of justice needed to be served cumulatively.  The two offences were unconnected and reflected two quite distinct and separate instances of criminal offending.

[36]     However, it is also necessary to assess whether a sentence of 15 months’

imprisonment would be “wholly out of proportion to the gravity of [Mr Gunn’s]

overall offending”.15

15     Section 85(2).

[37]   In my assessment, when viewed in context, a sentence of 15 months’ imprisonment would not be a wholly disproportionate response to the totality of Mr Gunn’s offending.

[38]     A total sentence of 15 months’ imprisonment would:

(1)       hold Mr Gunn accountable for the harm he has done;16

(2)       promote a sense of responsibility in Mr Gunn;17

(3)       denounce Mr Gunn’s conduct;18

(4)       deter Mr Gunn and others from similar offending;19

(5)       protect society from Mr Gunn;20   and

(6)       assist Mr Gunn in his rehabilitation.21

[39]     This  sentence  would  also  be  the  least  restrictive  sentence  that  could  be imposed in the circumstances of this case.22

[40]     Accordingly,  I  believe  that  the  appropriate  sentence  for  Mr  Gunn  is

15 months’ imprisonment. Those sentences would comprise:

(1)       six months’ imprisonment for driving while disqualified;  and

(2)       nine months’ imprisonment for perverting the course of justice. These sentences would be cumulative.

16     Section 7(1)(a).

17     Section 7(1)(b).

18     Section 7(1)(e).

19     Section 7(1)(f).

20     Section 7(1)(g).

21     Section 7(1)(h).

22     Section 8(g).

Home detention

[41]   The author of Mr Gunn’s pre-sentence report noted that Mr Gunn has accumulated 50 convictions for various crimes, including burglary, violence and driving offences.  The report writer also expressed her concern that Mr Gunn has had numerous community based sentences but this has not deterred him from further offending.   As a consequence, the probation officer recommended a sentence of imprisonment.  She also, however, recognised the possibility of a sentence of home detention.

[42]     Factors which indicate a sentence of home detention should be seriously considered include:

(1)The fact Mr Gunn is employed on a fulltime basis and produced letters  of  reference,  which  attested  to  him  being  an  excellent employee.   Mr Gunn’s employer is very supportive of him and described him as being a valuable member of the workforce. Continuing to allow a person to work is, in my assessment, a factor that deserves considerable weight when assessing whether a community based sentence should be imposed upon Mr Gunn.

(2)Mr Gunn’s former partner has now given birth to their child.   His former partner has confirmed that he continues to provide her with both financial and emotional support and she is very concerned that she will struggle with their new baby by herself.

(3)Mr Gunn was, at the time of sentencing, living with his brother and his family.  They confirmed that they are supportive of Mr Gunn and want to see him turn his life around.  They have offered their home as a place where Mr Gunn can serve a community based sentence if that is considered a viable option.

[43]     I have carefully considered whether or not a sentence of home detention should be imposed on Mr Gunn.  Ultimately I have concluded that because of the seriousness of his previous offending, his poor response in the past to community

based sentences and the overall seriousness of his offending, home detention is not an appropriate sentence in this case.

Conclusion

[44]     The sentences imposed by Judge Roberts in the Hawera District Court in relation to perverting the course of justice and driving while disqualified are quashed because they contained errors and a difference sentence should be imposed.   The sentences imposed by Judge Roberts are replaced with:

(1)       Six months’ imprisonment for driving while disqualified.

(2)       Nine months’ imprisonment for perverting the course of justice.

Those sentences are to be served cumulatively.

[45]     All other sentences and orders made by Judge Roberts stand.

D B Collins J

Solicitors:

Parker and Marriner Lawyers, Hawera for Appellant
Crown Solicitor, New Plymouth for Respondent