Hughes v Police

[2018] NZHC 1807

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000035

[2018] NZHC 1807

BETWEEN

SHANE EDWARD HUGHES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

19 July 2018

Appearances:

K L Chalmers for Appellant

S Bicknell Young for Respondent

Judgment:

19 July 2018

ORAL JUDGMENT OF VENNING J

Solicitors/counsel:           K L Chalmers, Christchurch

Crown Solicitor, Christchurch

HUGHES v NEW ZEALAND POLICE [2018] NZHC 1807 [19 July 2018]

[1]        Shane Hughes pleaded guilty to charges of driving whilst disqualified (third or subsequent), driving with excess breath alcohol (third or subsequent), reckless operation of a motor vehicle, resisting a constable, and possession of offensive weapons.

[2]        On 21 March 2018 Judge A A Couch sentenced Mr Hughes to imprisonment for one year and 10 months and imposed standard and special release conditions together with disqualification.1

[3]Mr Hughes appeals against sentence. The grounds of appeal are:

(a)the Judge erred by declining Mr Hughes’ application for an adjournment, thus preventing him from pursuing alternative addresses for a home detention sentence; and

(b)that the sentence was manifestly excessive, in particular the sentences imposed for the charges of possession of offensive weapon and excess breath alcohol charges.

[4]        Mr Hughes seeks orders quashing the sentence and remitting it back to the District Court and in the alternative, but not preferred, an order quashing sentence and substituting a different lesser sentence.

[5]        At the outset of the hearing of this appeal this morning Ms Chalmers sought an adjournment. She advanced two reasons in particular for the adjournment:

(a)first, she wanted time to respond to the Crown submissions insofar as they rely on a passage in the pre-sentence report; and

(b)second, she only received the Crown submissions in the evening of Tuesday and had only had one clear day to consider them.

1      New Zealand Police v Hughes [2018] NZDC 8444.

[6]        I declined the application for adjournment. I indicated that I was prepared not to take account of the particular passage in the pre-sentence report and indicated that in my view one day to prepare a response to the Crown submissions in reply on a sentence appeal was sufficient. However I stood the matter down from the list in the morning to 3.45 pm for the appeal to give counsel further time.

[7]        The relevant offending is described by the Judge in his sentencing notes as involving two incidents.

[8]        In the afternoon of 15 October 2016 Mr Hughes was driving a car on State Highway 2 near Waipukurau. At the time he was disqualified from driving. That led to the charge of driving whilst disqualified (third or subsequent).

[9]        Seven months later, on 20 May 2017, Mr Hughes was again driving in the Waipukurau area. He failed to stop at a police cordon which had been set up to stop him. He drove off at a speed estimated of up to 100 kilometres an hour in a 50 kilometre per hour residential zone. He hit a traffic island at an intersection and skidded some 48 metres across the intersection before his car came to rest in a residential property. Mr Hughes then ran off but was subsequently caught by the police. When the police tried to arrest him he resisted and also made threats to the officer involved. A search of the car located a stun gun or taser, a CO² powered air pistol and also two knives. Mr Hughes was tested for alcohol and was found to have a breath alcohol level of 954 micrograms per litre of breath.

[10]      As the Judge noted all of that occurred against the background of an extensive criminal history of more than 50 convictions, principally for offences of dishonesty and offending under the Misuse of Drug Act 1975, although as the Judge noted there were two previous convictions for alcohol related driving in 2001, 2004 and two for driving while disqualified, both in 2016.

[11]      The Judge took the possession of offensive weapons as the lead charge, considering that a starting point of 12 months’ imprisonment was required. He then uplifted that by 12 months for the excess breath alcohol and reckless driving charges, and a further eight months for the driving whilst disqualified. He then uplifted that

adjusted starting point by two months for Mr Hughes’ previous criminal history. The Judge then gave a discount of eight months for the guilty plea and a further four months to reflect totality. That led to the end sentence of one year, 10 months’ imprisonment. The Judge considered home detention would be an appropriate alternative but there was no appropriate address available. The Judge did reserve leave to apply for substitution of sentence.

[12]      Ms Chalmers referred to the background which led to the sentencing exercise before Judge Couch. As noted the offending occurred in Waipukurau. Mr Hughes had entered guilty pleas to all charges, except resisting police, on 28 July 2017 in the Waipukurau District Court with assigned counsel Mr Hewatt. On 15 January 2018 Mr Hewatt appeared in the Waipukurau District Court and requested all matters be transferred to the Christchurch District Court for sentence. On 16 January Mr Hughes appeared in the Christchurch District Court where he entered a guilty plea to the remaining charge of resisting police and a sentence date for all charges was given. Pre-sentence reports with appendices were ordered.

[13]      On 19 March 2018 Mr Hughes was assigned to Mr Maze on unrelated matters. On 20 March Mr Hughes appeared before Judge Couch. Mr Tupaea appeared as assigned counsel. That was on an additional and fresh charge of driving whilst disqualified. Mr Tupaea was unaware there were other matters but the Judge drew those to his attention. A review of the file disclosed that three different counsel had been assigned to Mr Hughes. The Judge decided to consolidate matters and directed the matter be adjourned to the following day for one counsel to be assigned to all matters and for the sentencing to proceed that day. The Judge effectively brought the sentencing forward.

[14]      Mr Maze and Ms Chalmers as his employee took over the file for the sentencing. Ms Chalmers notes she was only able to speak to Mr Hughes at 9.30 in the morning before Court at 10.00 am. She was provided with a pre-sentence report which stated the home detention address which had been assessed was not suitable as the landlady had withdrawn consent. Ms Chalmers sought an adjournment which the Judge declined.

[15]      As noted the first ground of appeal is that the Judge erred in law when he refused to grant the adjournment to allow Mr Hughes to provide a suitable and alternative home detention address. Ms Chalmers submits that the failure to grant the adjournment meant that there was an error in the sentence imposed.

[16]      Further, while acknowledging the Judge had a discretion she submitted that the discretion was not exercised by the Judge in accordance with law and principle and the Judge effectively approached the matter with a closed mind and was determined to have the sentencing exercise carried out the next day.

[17]      The second ground of appeal is as to the substance of the sentence. It is submitted that the sentence imposed was manifestly excessive and was not justified by relevant sentencing principles.

[18]      As the history of the case discloses the original offending for which Mr Hughes was sentenced on 21 March took place in 2016 and 2017. Guilty pleas had initially been entered to most of the charges with the exception of the resisting police on 28 July 2017. A pre-sentence report was available for the sentencing. The Judge adjourned the matter for one day to clarify the issue of counsel and to ensure that the sentencing proceeded the next day.

[19]      Ms Chalmers referred to two Court of Appeal decisions where the Court upheld the Judge’s decisions declining applications for adjournment where the sentencing Judge was of the view that home detention was not an appropriate outcome in support of her submission that the Judge should have adjourned the sentencing.2 The cases are not directly relevant because of course in the present case, as the Judge accepted, home detention would have been an appropriate outcome if a suitable address was available. The problem for Mr Hughes was that he did not have a suitable available address. The address that had possibly been available had been withdrawn as the landlady had withdrawn her approval given Mr Hughes had been arrested on the fresh charge.

[20]      In the circumstances s 80I of the Sentencing Act 2002 applied. The Judge complied with it. He had sentenced Mr Hughes to a short term of imprisonment. At

2      Paora v R [2011] NZCA 472; and Daw v R [2011] NZCA 581.

the time of sentencing the Judge would have sentenced the offender to a sentence of home detention if a suitable address had been available. The Judge was required to make an order granting Mr Hughes leave to apply for cancellation of the sentence and substitution of the sentence of home detention if a suitable address was found at a later date. Although in shorthand form, that is the effect of the Judge’s order in granting leave to apply for substitution of the sentence.

[21]      In the circumstances, particularly given the lengthy background to this matter from when the initial offending had taken place, and when the guilty pleas were entered, and that the Judge had all relevant information in front of him on the day for sentencing and had adjourned the matter for a day to enable counsel to prepare for sentencing I am satisfied that the Judge was entitled to decline the application for a further adjournment of the sentencing and to proceed with the sentencing on 21 March. There was no error of principle in the Judge’s decision to proceed.

[22]      As Toogood J observed in the case of Larkin v Ministry of Social Development:3

The section [80I] gives no guidance about when it should be used instead of adjourning the hearing and there does not appear to have been any judicial analysis of where the use of s 80I is appropriate in place of an adjournment. In Police v Tiatia, adjournment or the granting of leave under s 80I were described as alternatives. Each approach appears to have been used frequently, and interchangeably, although consideration of the cases suggests that adjournment is typically used where a report regarding home detention has not been provided, or a suggested address has not been assessed, rather than in cases where it is clear that no suitable address is currently available.

In the present case the relevant report was before the Judge and there was no suitable address currently available and communicated to the Judge.

[23]      I note that during the course of submissions Ms Chalmers indicated to the Court that Mr Hughes now has an alternative address that may be suitable but has chosen not to make an application for leave to substitute the sentence, preferring instead to pursue this appeal. That is a matter for Mr Hughes and his advisers, but it

3      Larkin v Ministry of Social Development [2015] NZHC 680 at [29] (footnote omitted).

does not affect the validity of the decision of the Judge to adjourn the matter when it was before him in light of the information before the Judge at that time.

[24]      There was no error in the way the Judge dealt with the matter of the adjournment. If there is an available address, the short and appropriate remedy is for Mr Hughes to apply to seek leave to substitute the sentence.

[25]      On the second point counsel submitted that the Judge fell into error by overstating the starting point in relation to the possession of offensive weapons, the EBA and reckless driving charges. Ms Chalmers made the point, which I accept, that there is only one charge for possession of an offensive weapon, albeit that four weapons were referred to, the air pistol, the taser or stun gun, and the two knives. She submitted that the fishing knife and air pistol were not offensive weapons. Ms Chalmers referred to a number of decisions where the Court had taken starting points for possession of offensive weapons, particularly the cases of Police v Bevins; Grafton v Police; and Naiker v R and submitted that the offending in the present case was substantially less serious than those cases.4

[26]      In response the Crown submit that it was open to the Judge to take the starting point of 12 months’ imprisonment for the possession of weapons, noting that in addition to the cases referred to by Ms Chalmers in Rattigan v Police this Court had upheld a starting point of 10 months’ imprisonment for three charges of possession of an offensive weapon.5 That case involved a large knife and two unloaded air pistols.

[27]      Bearing in mind the maximum penalty for the offending and the circumstances in which the weapons were found to have been in Mr Hughes’ possession I do not accept the submission the starting point of 12 months is manifestly excessive. Ms Chalmers submitted the Judge should not have taken into account the suggestion in the summary of facts that Mr Hughes was intending to use the weapons to threaten or harm members of a gang which had been apparently been harassing him. The summary stated that at about 10.00 pm on Saturday 20 May 2017 police had received

4      Police v Bevins DC Palmerston North CRI-2009-085-7475, 12 May 2010; Grafton v Police High Court Christchurch CRI-2009-409-56, CRI-2009-409-57, 25 June 2009; and Naiker v R [2014] NZCA 20.

5      Rattigan v Police [2013] NZHC 1113.

information that the defendant Hughes was driving to Waipawa to seek retribution against a gang member. The police were told that Hughes was in possession of an air pistol. At about 10.25 pm the defendant drove his Subaru motor vehicle east on Leeton Drive and ignored the attempts of an officer to stop him, and the reckless driving offending then occurred. When the summary is read in context it makes it clear that the information the police had received was consistent with the inference the Judge drew from it, namely that the defendant was in possession of weapons and was driving to seek retribution against a gang member. The summary was entirely consistent with the information the police had that he was in possession of an air pistol for that purpose.

[28]      The fact that Mr Hughes failed to stop at the police cordon or to stop for the police when they were specifically trying to stop him because of the information and then, when his car was searched, he was found to be in possession of an air pistol and other weapons was confirmation the information the police had received was correct. It does in my view aggravate the seriousness of the offending. I consider it was open to the Judge to take a sentence of between 10 and 12 months for the one charge of possession of offensive weapons.

[29]      Next, Ms Chalmers criticised the uplift for the excess breath alcohol charge and the reckless driving charges as excessive, although during the course of submissions she accepted that perhaps she had overlooked that the Judge’s uplift of 12 months was in relation to both of those charges. Ms Chalmers did not challenge the eight months’ sentence for driving whilst disqualified nor the other two month uplift. She submitted that an end sentence of somewhere in the region of 14 months before mitigating factors might have been appropriate for the totality of the offending.

[30]      With respect I consider that submission to be unrealistic. The reckless driving and excess breath alcohol charges combined readily justified the 12 months uplift that the Judge imposed. In fact it could have been more. The driving was very serious and exposed other members of the public to serious injury and possibly death. The breath alcohol reading was significantly high.

[31]      It follows that I accept the Judge was quite entitled to reach the aggregated starting point of 34 months. The Judge then effectively applied a 22 per cent discount for the guilty pleas and then a further four months reduction for totality. While most of the pleas were entered relatively early (with the exception of resisting police charge) as the Supreme Court observed in Hessell v R the Court is also entitled to take account of the strength of the police case, in fact is required to take account of the strength of the police case.6 The police case against Mr Hughes was overwhelming in relation to the reckless driving, possession and excess breath alcohol charges. In the circumstances the discount of 22 per cent could be regarded as generous.

[32]      The end sentence of one year, 10 months was well within range. The appeal is dismissed.

Venning J

6      Hessell v R [2011] 1 NZLR 607.