Hazel v Police

[2020] NZHC 609

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2020-441-4

[2020] NZHC 609

BETWEEN

LUCAS JAMES HAZEL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	13 March 2020
Appearances:	A McPherson for Appellant M Mitchell for Respondent
Judgment:	13 March 2020

JUDGMENT OF GRICE J

Introduction1

[1]    This is a sentence appeal against a sentence of 29 months’ imprisonment and two years’ driving disqualification. That sentence was imposed in relation to three charges. The appeal is advanced on the basis that the Judge failed to take into account the totality principle and therefore the sentence was manifestly excessive. In addition, the appellant contends there was also an error of principle in failing to recognise a guilty plea discount in relation to some of the charges.

1      This decision was delivered orally on 13 March 2020. The written form has been edited and footnoted before distribution.

HAZEL v NEW ZEALAND POLICE [2020] NZHC 609 [13 March 2020]

Factual Background

[2]    The appellant, Mr Hazel, was sentenced on a charge of reckless driving causing injury (to which he had entered a guilty plea),2 two charges of assault in a domestic relationship (to which he had entered guilty pleas before trial),3 and a charge4 of theft of personal property valued at $1,000.5 for which he been convicted following a defended hearing.6

[3]    The reckless driving causing injury charge arose from events on a Saturday morning. At about 1.15am the appellant was driving a car with two passengers. The police signalled for him to stop and activated their police vehicle lights. The appellant drove off and accelerated to speeds in excess of 150 kilometres an hour in an area with a speed limit of 50 kilometres an hour. Having driven along the wrong side of the road the car became airborne and when it landed the appellant lost control. The car skidded through a fence and crashed into a house damaging a caravan.   One passenger in   Mr Hazel’s car sustained a serious laceration to her back which revealed bone. The other passenger sustained a forehead injury requiring surgery. The damage to the property totalled in excess of $5,000.7 Mr Hazel fled the scene and was not found for a number of weeks.

[4]    The second lot of charges relating to domestic assaults concern two incidents. On 24 June 2019 in the vicinity of the Hawkes Bay Hospital, Mr Hazel and his partner, the victim, began arguing. She ran away. Mr Hazel chased her into the hospital and stopped her from escaping. He grabbed her around the head, dragged her out and lifted her off the  ground pushing her down the stairs.   The victim tried to get around     Mr Hazel but was blocked from doing so.8

2      Land Transport Act 1998, s 36(1)(a): maximum penalty of 5 year’s imprisonment or a fine of

$20,000.

3      Crimes Act 1961, s 194A: maximum penalty of 2 years’ imprisonment.

4      This separate conviction was after a trial also by Judge Adeane. The judgment is part of the file:

Police v Hazel [2019] NZDC 22193.

5      Crimes Act 1961, ss 219 and 223(c): maximum penalty of 1 year’s imprisonment.

6      Police v Hazel [2020] NZDC 1342 (“the District Court Judgment”).

7 Respondent submissions at [8].

8      Summary of Facts.

[5]    On 15 July 2019,9 the victim and Mr Hazel had been arguing while they were driving and both jumped out of a moving vehicle. The vehicle rolled or drove into a ditch. They were then picked up by a member of the public. The two continued their arguing. At one point the appellant slapped the victim with a backhand which was apparently quite painful according to the victim. He pushed and held her down in the footwell of the motor vehicle in which they were travelling.

[6]    The third charge relates to theft of a handbag. Mr Hazel was found guilty after a defended hearing. The facts were that on 8 December 2018 the appellant and another male took the complainant’s handbag. Family members tracked the bag via the tracking system on the cell phone and after confronting the males and asking them to give back the phone, the two men absconded. The other male was eventually detained by the family while the appellant was able to escape. The items stolen included a cell phone that had filmed the complainant’s now deceased father who was terminally ill. The cell phone, the Crown indicate, did has never been returned and the record has been lost.

Law on appeal against sentence

[7]    There is no contest as to the applicable law. It is set out in the respondent’s memorandum and that is:

5.An appeal against sentence can only succeed if the appellant can demonstrate both that there has been an error in the sentence imposed, and that a different sentence ought to have been imposed.

6.The test remains whether a sentence is manifestly excessive; in other words, whether it is substantially more severe than it ought to have been when regard is had to the seriousness of the offending and the culpability of the offender.

7.The focus in all cases is on the end sentence, and not on the process by which that sentence was reached:¹

The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.

9 Charging Documents. Note that the District Court judgment states February and June at [1].

Law on cumulative sentences

[8]    It is also common ground that when a Judge is sentencing on multiple offences the Court must have regard to the totality principle in s 85 of the Sentencing Act 2002 (the Act). The Court must decide whether to impose concurrent or cumulative sentences and it must ensure the total sentence is proportionate to the gravity of the overall offending.

[9]    Cumulative sentences are generally appropriate if the offences are different in kind, whether or not they are connected in a series of offences.10 Concurrent offences are generally appropriate if the offences are of a similar kind and a connected series.11

[10]   For a sentence appeal to be successful, as I have outlined, there must be an error in the sentence imposed on conviction. That may include a matter of totality, and that a different sentence should be imposed.12

District Court judgment

[11]   The Judge sentenced Mr Hazel to 29 months’ imprisonment and two year’s disqualification from driving. The Judge adopted a starting point for the driving offence of 24 months’ imprisonment. He then discounted that by some 15 percent down to 20 months’ imprisonment (although no specific reason was given for the discount it is clear it was for the guilty plea). The sentence is then uplifted for the domestic violence offences by six months’ imprisonment which he says are “after discounts for the guilty pleas”13 and for the theft charge, a three-month uplift is then added.

[12]   The Judge then comments the final sentence is 29 months’ imprisonment. The assaults added six months to the 20 months for the reckless driving and theft added three months’ imprisonment, to be served concurrently.14

10     Sentencing Act 2002, s 84(1).

11     Section 84(2).

12     Criminal Procedure Act 2011, s 250.

13 District Court judgment at [10].

14 The Judge summarises this in his judgment at [12].

Issues on Appeal

[13]   Mr Hazel’s position is that the sentence derived from an error in the Judge’s approach and that the end sentence was manifestly excessive. He points to three errors in approach:

(a)the starting point on the reckless driving charge was too high;

(b)no discount was given for the guilty plea in respect of the domestic violence offences; and

(c)no account for totality was considered when applying the uplifts to the reckless driving charge sentence.

[14]   The Crown’s position is that the end sentence is well within the range available on accepted sentencing principles and should not be interfered with.15

[15]I now turn to look at each of the issues separately.

Analysis

Was the starting point on the reckless driving charge too high?

[16]   As I have indicated the Judge started at 24 month’s imprisonment. He said in relation to the reckless driving charge:

[2]Counsel submits correctly that the lead charge is the reckless driving causing injury. The offence, of course, carries with it a maximum sentence of five years’ imprisonment. The facts here are highly aggravated. The driving occurred at about 1.15 am on a Saturday morning. The defendant was driving a Subaru motor vehicle on Karamu Road South. He had two passengers, one in front, and one asleep in the back. The police signalled him to stop, activated red and blue lights, and the defendant responded by accelerating away along Railway Road. He turned into Gascoigne Street, which has a posted speed limit of 50 kilometres per hour, and there was travelling at speeds in excess of 150 kilometres per hour.

[3]At the end of that street, which is controlled by a give way sign, he travelled straight through on the wrong side of the road at such speed

15 Respondent submissions at [4].

that his car became airborne, landing at an angle on Oliphant Road, where the defendant completely lost control of the vehicle which skidded through a fence. Wooden fencing components came through the doors of the car, the vehicle struck the side of a house and came to stop in the front garden.

[4]The defendant made off but the passengers were located with serious injuries. The result was that one female passenger suffered a serious laceration to her back, where bone was visible. The other sustained a serious blow to the forehead which required surgical closing. Damage in the order of $5,600 was caused to the various items of property involved.

…

[6] The aggravating features here are the gross recklessness involved as evidenced by the outcome, fleeing the police at extreme speed. All of these features are present to a high degree. There is also serious injury and property damage present, both to a moderate degree.

[17]   The appellant accepts that the driving did involve excess speed and recklessness as well as failing to stop resulting in a crash. The appellant says the injuries could be assessed as moderate to the passengers and they were also to a certain extent complicit in that they were in the car for the ride. The appellant also makes the point that no other vehicles were involved.

[18]   Mr Hazel submits an appropriate starting point would be 12 months with reference to two cases: Kerr v Police16 and Gibson v Police.17 Mr Hazel argues that there was excess speed and failing to stop for police resulting in a “crash with only moderate, but treatable injuries” and therefore his case is less serious than Kerr. The point is also made there was no intention to injure victims and no drunk driving element present. As to the latter, while the Crown do not rely on any alcohol or drugs being present Ms Mitchell made the point that Mr Hazel absconded and was not found for some time so there was no ability to administer any alcohol or drug testing in any event.

[19]   However, it is difficult to compare facts of cases and reckless driving cases in particular will involve multiple factors and are very difficult to compare. However, in terms of comparison with Kerr in that case there was no police chase and in this case

16     Kerr v Police, Invercargill HC, 25/20/2011, CRI-2011-425-37 (“Kerr”).

17     Gibson v Police, Christchurch HC, 18/12/2009, CRI-2009-409-000205.

Mr Hazel was driving in excess of 50 kilometres compared to the speed of 90 to 100 kilometres in Kerr.18 A substantial and significant difference in my view. I noted the drink driving element certainly occurred in Kerr and is has not been established in this case. In relation to the types of injuries I accept that the two passengers in Kerr suffered reasonably serious injuries and it may be that the injuries here could be assessed as less serious. However, standing back and looking at the whole in my view there is not much assistance to be taken from Kerr. In that case the starting point was 20 months. Comparing this with Kerr I do not consider the Judge was out of range at 24 months.

[20]   As for Gibson, there needs to be caution applied as the judgment does not explicitly state that the 12 months’ imprisonment was the starting point – that was end custodial sentence. I find it difficult to compare this case with Gibson.

[21]   The Crown puts forward a number of cases. The general point on these cases is that much higher starting points have been adopted and not appealed. I find the most analogous case put forward by the Crown was Walshe v Police. In that case a starting point of two years and eight months’ imprisonment was adopted for an appellant’s reckless driving causing injury. Justice Simon France described that sentence as lenient”.19 The key aggravating factors including the fact the accident occurred in the course of evading police, that Mr Walshe was forbidden from driving, and the injuries of moderate seriousness was sustained by victims. There had been a persistent course of deliberate bad driving in that case.20 Many of those factors apply to the present case.

[22]   The respondents also point to a number of other cases which to a greater or lesser degree compare in some elements but not all so I do not consider it is necessary to go through those.

[23]   In my view the starting point of 24 months was well within the range particularly given the elements present here which I have listed and also the fact that

18     Kerr, above n 16, at [18].

19     Walshe v Police [2019] NZHC 3068 at [21].

20 At [9].

Mr Hazel did not and has never held a driver’s licence. The driving also posed a serious risk to other road users which luckily he did not meet in the course of his driving. The excessive speeds achieved of over 150 kilometres, failing to give way at an intersection and the ultimate loss of control after driving down a street the wrong way in my view add to the seriousness of the offending.

[24]Therefore, I do not consider the Judge made an error with the starting point.

Was a discount given for the guilty plea relating to the domestic violence offences?

[25]   The appellant argues that no guilty plea discount was given or at least articulated by the Judge even though Mr Hazel had entered guilty pleas to the two charges of assault. This led, in Mr Hazel’s submission, to an unreasonably long sentence.21 For Mr Hazel, Ms McPherson submitted that the time lapse before resolution of these offences predated the change of counsel. As soon as the change of counsel occurred matters moved along quickly and a guilty plea was entered before trial.

[26]   The Crown contends that a starting point in excess of eight months’ imprisonment was available to the Judge. The respondent’s reason is that the domestic assaults were not minor. It says that previous cases have held that there is no tariff for male assaults female charges, with the sentences ranging from two years to 12 months. Ms Mitchell cites the decision of Justice Brewer in Wati.22 Ms Mitchell also submits that the guilty plea was applied although not articulated and in this case the appellant also had a history of domestic violence which is also relevant.

[27]   I accept Mr Hazel’s point that there was no articulated amount for the discount that was given by the Judge. The Judge simply said “I place [the domestic violence uplift] at six months’ imprisonment after discounts for a guilty plea”.23 That was not following the formula established in Hessell.

21 Appellant submissions at [14].

22     Wati v R [2015] NZHC 2064 at [8].

23 District Court judgment at [10].

[28]   However, in my view even allowing for a substantial discount for a guilty plea the final figure was well within the range. When considering the two occasions of violence taken alongside a history of domestic violence I consider it was open to the Judge to find six months’ imprisonment as an appropriate uplift in the present case once the guilty plea was factored in. The summary of facts recounts the incidents. The first, occurred in a car. It involved intentional and prolonged violence toward the victim. The defendant jumped out of the driver’s seat into the back seat when he was driving the car and then followed the victim out of the car when she jumped out of the car. The car then rolled into a ditch. They were picked up by a third party and when they were in that car the defendant continued by hitting the victim with a back hand to the face which she said was very painful. He then pushed her into the back footwell of the vehicle.

[29]   The second assault happened outside Hawkes’ Bay Hospital as I have recounted. In that assault the defendant chased the victim, dragged her outside, and then pushed her down steps. Eventually she got away.

[30]   It is apparent that while the Judge did not consider those charges as serious as the reckless driving charge they were not trivial by any means. Therefore, in my view the sentences even allowing for a full 25 per cent discount, which of course was not articulated, were well within the range available for such offending. In my view the Judge made no error in that respect.

Was totality accounted for in the uplift?

[31]   It is necessary to stand back and look at the totality of the offending. This is in light of the final sentence imposed of 29 months’ imprisonment and two years’ disqualification.

[32]   In those circumstances I do not consider that the total sentence was outside the range available. It was not manifestly excessive having regard to the number and nature of aggravating features associated with the appellant’s driving, secondly the nature of the domestic violence and the defendant’s history domestic violence and finally, the fact that the sentencing Judge at the same time cancelled the appellant’s

sentence of community work associated with earlier driving offending so the present sentence effectively serves as the appellant’s account for that incident as well.

Result

[33]   Therefore, I consider the final sentence was well within the range. It was not manifestly excessive and the appeal is dismissed.

Grice J