Horridge v Police

[2018] NZHC 2589

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000265

[2018] NZHC 2589

BETWEEN

GLENN ANTHONY HORRIDGE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	2 October 2018
Counsel:	HB Leabourn for Appellant HG Max for Respondent
Judgment:	4 October 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 4 October 2018 at 11 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

HB Leabourn, Auckland.

Crown Law, Wellington.

HORRIDGE v POLICE [2018] NZHC 2589 [4 October 2018]

The appeal

[1]    Mr Horridge appeals his 30-month term of imprisonment on the basis it is manifestly excessive.1 He contends Judge Ronayne adopted too high a starting point, and failed to have adequate regard to the totality principle.

Facts

[2]Mr Horridge committed multiple offences, best explained in sets.

First set: burglary, interfering with a boat, breaching bail and attempting to pervert the course of justice

[3]    On 8 February 2016, Mr Horridge drove to a building site with another. The pair unlatched the fence, entered the property and stole plywood leaning against the house. The next day, Mr Horridge and another stopped outside a property where a boat was parked. Mr Horridge’s associate jumped onto the boat. The complainant confronted him. He ran away. The complainant also confronted Mr Horridge, who drove off.

[4]On 29 August 2016, Mr Horridge failed to answer District Court bail.

[5] Between July and November 2017, Mr Horridge approached his neighbour’s sister, R. Mr Horridge repeatedly asked her to give false alibi evidence in relation to the offences at [3]. Mr Horridge provided R with a letter setting out the proposed evidence. R went to the Police prior to trial.

Second set: driving under the influence causing injury

[6]    On 16 October 2016, Mr Horridge was driving. He had been using both methamphetamine and cannabis. Mr Horridge drove into a parked car in the early hours of the morning. His passenger, a friend, was not wearing a seatbelt. She was badly injured. She was hospitalised for four weeks, suffered two broken ankles, a shattered foot plate, a broken left shin and scarring. Mr Horridge told Police he had been drinking bourbon.

1      R v Horridge [2018] NZDC 14613.

Third set: unlawfully interfering with a boat and theft

[7]    On 13 January 2018, Mr Horridge and two others approached a boat parked outside a property. Mr Horridge acted as lookout while his associates removed the boat’s fuel line and fuel tank—and stole them.

The Judge’s approach

[8]The Judge dealt with each set individually, in this manner:

Set 1 ·     Perverting the course of justice; unlawful interference with a ship; ·     Burglary; and ·     Failure to answer bail.	Set 2 ·   Driving under influence causing injury.	Set 3 ·   Theft; and ·   Unlawful interference with a ship.
Lead offence identified	Perverting the course of justice
Starting point	20 months	15 months	6 months
Uplift for other offending	3 months	-	-
Guilty plea discount	5 months (30%)	3 ½ months (23%) including remorse	-
Totality discount	2 ½ months	3 months
Total totality discount: 5 ½ months (14%)
Final sentence	18 months	9 months	3 months
Total sentence: 30 months’ imprisonment (2 ½ years)

An excessive starting point on the perverting charge?

[9]    Mr Hugh Leabourn contends the 20-month starting point is too high. He places weight on R v Tamati.2 Mr Tamati was stopped at a Police road block. He sent a text

2      R v Tamati [2012] NZHC 221.

message to his partner, asking her to create a false alibi for him. MacKenzie J adopted a starting point of 12-months’ imprisonment. Mr Leabourn submits the case is “very similar” to Mr Horridge’s.

[10]   I disagree. Mr Tamati did no more than send a text message; Mr Horridge repeatedly asked the proposed witness to falsely testify, and he put in writing what she should say. Mr Tamati’s offending occurred within a minute or so. Mr Horridge’s occurred over several weeks. Tamati is inapt for two other reasons. The 12-month starting point was made cumulative on a six-and-a-half-year sentence for other very serious offending. This diminishes Tamati’s value as a precedent. So too the fact it is a first-instance decision, not one on appeal.

[11]   More apt are Harting v R3 and Maney v R.4 Mr Harting faced charges of violence in relation to his former partner. He wrote a letter to one of his adult step- children suggesting the complainant swear an affidavit saying she had fabricated the allegations. The complainant found the letter and gave it to Police. Mr Harting also called his step-child three times to encourage the complainant to withdraw the charges. A 24-month starting point was upheld on appeal.

[12]   Mr Maney faced charges of violence too. He encouraged a family member to persuade the complainant to change his evidence. It was agreed the complainant would be coached. However, the family member did not follow through and the complainant testified. A 24-month starting point was upheld in this case also.

[13]   Mr Horridge’s offending is like that of Mr Maney and Mr Harting, albeit a little less serious. Each applied indirect pressure to a complainant, whereas Mr Horridge sought to cultivate false testimony from a third party. The lesser starting point reflects this; Judge Ronayne adopted 20 months, not 24.

Totality

[14]   Under s 84(1) of the Sentencing Act 2002, a cumulative sentence is “generally appropriate if the offences which an offender is being sentenced are different in kind,

3      Harting v R [2016] NZCA 296.

4      Maney v R [2018] NZCA 193.

whether or not they are a connected series of offences”. The Judge appropriately considered the offending as three distinct sets. Cumulative sentences were appropriate, at least in relation to the first and second sets.5 This is especially true when an offence of wilfully attempting to pervert the course of justice and the offence comprising that course are sentenced together.6

[15]   Mr Leabourn does not really contest any of this. Rather, he submits the Judge failed to adequately address the totality principle. Mr Leabourn submits the reduction—five-and-a-half months—was inadequate. He emphasises Mr Horridge’s modest role in relation to the third set of offences, and the fact the adult victim was not wearing a seatbelt in relation to the second.

[16]   Section 85(2) of the Sentencing Act does not provide for automatic totality adjustment; the provision is concerned with a period of imprisonment “wholly out of proportion to the gravity of the overall offending”. The operation of the totality principle in this case elides with the ultimate issue: is the overall sentence of 30 months’ imprisonment manifestly excessive?

[17]   Most things suggest not. Mr Horridge sought repeatedly to have R lie for him. The related starting point of 20 months’ imprisonment is unremarkable. The driving offence is a serious example of its kind. True, the victim did not restrain herself. However, the starting point and end sentence for this offence are both within range.7 Mr Horridge’s guilty pleas comprised the only significant mitigating feature. The Judge provided for it. Moreover, Mr Horridge committed the post-9 February offences—meaning everything in the second and third sets—while he was on bail.

As Ms Max for the Police observes, this is a serious aggravating factor.8

[18]   The one caveat is this. The Judge imposed a cumulative three-month term for the third set of offences, even though these might well have attracted a sentence other than imprisonment if committed in isolation. Care must be taken to ensure offences

5 See [18].

6      Fitzgerald v R [2012] NZCA 558 at [15].

7      Wright v Police HC Whangarei CRI-2009-488-47, 20 October 2009; Matheson v Police HC Christchurch CRI-2007-409-32, 1 June 2007; Manikpersadh v Police HC Auckland CRI-2010-404-252, 28 September 2009; Arrow v Police [2016] NZHC 3069.

8      Sentencing Act 2002, s 9(1)(c).

committed on separate occasions do not result in a disproportionately severe sentence simply because they are sentenced together. Mr Horridge seemingly played a lesser role in this set, and the property was recovered. The fact relatively less serious offending was committed on bail did not warrant an additional cumulative term. Put another way, a term of 27 months’ imprisonment was appropriate for all offending.

[19]   The appeal is allowed, but only in relation to the cumulative three-month term. It is quashed.

[20]The resulting sentence is 27 months’ imprisonment.

……………………………..

Downs J