Kelly v Police

[2020] NZHC 972

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-412-000009

[2020] NZHC 972

BETWEEN

SCOTT JAMES WREFORD KELLY

Appellant

AND

NEW ZEALAND POLICE

Respondent

CRI-2020-412-000010

BETWEEN

SCOTT JAMES WREFORD KELLY
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	12 May 2020
Appearances:	S A Saunderson-Warner for Appellant R P Bates for Respondent
Judgment:	12 May 2020

ORAL JUDGMENT OF GENDALL J

Introduction

[1]    This is an appeal against sentence. On 17 April 2020 Judge Crosbie in the District Court at Dunedin sentenced the appellant Scott Kelly to 16 months’ imprisonment on a lead charge of wilfully attempting to defeat the course justice. He was also for sentence on a charge of transmitting radio waves without a licence or exemption and a charge of using interfering equipment that had been declared to be prohibited equipment. Finally, he was disqualified for a period of two years on charges

KELLY v NEW ZEALAND POLICE [2020] NZHC 972 [12 May 2020]

of dangerous driving and driving while suspended. Mr Kelly appeals his sentences of imprisonment and disqualification on the basis they are manifestly excessive.

Facts

[2]    Turning now to the facts in this matter, on 29 October 2019 Mr Kelly was suspended from driving for a period of three months for excess demerit points. When asked by police if he understood the suspension, he told police, “I will continue to drive but I won’t be stopping for police for three months”.

[3]    In the evening of 10 December 2019, a police constable was on duty as a police dog handler in the Otago Coastal Area. During the evening, Mr Kelly made various unauthorised radio transmissions on the police radio channel using a personal radio transmitter. The Constable recognised Mr Kelly’s voice due to past dealings with him. Mr Kelly deliberately jammed the police radio by continuing to comment on current police operational matters, hindering police in their communications. He continued to make personal comments on the radio directed at the particular constable over the course of the night, including “Fuck those Deltas” (referencing the police radio code for dog units), “Getting close to your house” and stating the Constable’s home address.

[4]    At about 10.20 p.m. the Constable returned home and heard a vehicle speed past his house. He got into his patrol car to locate the vehicle. A short time later the Constable was dealing with a driver of a vehicle he had stopped on an unrelated matter, when the defendant made further comments on the police radio: “come and get me”, “those are my brake lights flashing”, “come and get me” and “Pop pop Nigga”.

[5]    The Constable then continued patrolling along Factory Road in Mosgiel. He observed Mr Kelly driving his vehicle towards him on the wrong side of the road, with no headlights on and travelling at approximately 90–100 km/h. The Constable was forced to take evasive action to avoid being crashed into. Mr Kelly swerved at the last minute to avoid impact.

[6]    The Constable turned his vehicle around to follow Mr Kelly’s vehicle north and activated his blue and red flashing lights and siren. Mr Kelly did not stop when

signalled to by the Constable.  A pursuit  was  initiated.  The Constable  observed  Mr Kelly’s dangerous manner of driving including his increased speed and swerving onto the wrong side of the road. He abandoned the pursuit, noting Mr Kelly’s speed to be approximately 200 km/h as he fled down Factory Road. This failing to stop formed the basis of the charge of wilfully attempting to defeat the course of justice.

[7]    Moments later, Mr Kelly made further comments on the police radio of “You not want to chase me cunt” and “I drove past your house cunt”.

[8]    I interpolate here one further matter. Earlier, on 20 September 2019, the appellant was spoken to by the police constable on an unrelated matter when he was driving the same Audi motor vehicle he was in during the evening of 10 December 2019. At that time, he advised the Constable that he knew of both his Facebook and Instagram accounts and quoted both of the account names to the officer. He also advised the Constable that he could get his address as well through the police database or the Electoral Roll and he said that he would not stop for police the next time.

District Court decision

Sentence indication

[9]    Turning now to matters in the District Court, the first relates to a sentence indication. On 4 March 2020 Judge Crosbie gave a sentence indication requested at that time by the appellant.1 He took the view that Mr Kelly’s knowledge and use of the radio transmissions were relevant to the charge of wilfully attempting to defeat the course of justice. He observed the broad range of factual circumstances that fell within a charge of perverting or defeating justice. He considered Mr Kelly’s conduct to fall somewhere in the middle of: interfering with and threatening witnesses at the upper end, and drivers giving false details to police to avoid enforcement action at the lower end. This view was guided by his appreciation of Mr Kelly’s “quite sophisticated attempt to take yourself out of the criminal justice system, or at least portray that you are better than it” citing the use of the transmitting device and the goading of the Constable.

1      R v Kelly DC Dunedin CRI-2019-012-2524, 4 March 2020.

[10]   His Honour noted the cases cited by the Crown were all quite different to the present offending.2 He considered of those, Stevens v Police was the most analogous. There, a driver who was pulled over  and  tested  gave  police  a  false  identity.  Judge Crosbie said, “Yours is – well, not a little bit more; quite a lot more serious. It was orchestrated, premeditated and sophisticated.”3

[11]   The Judge noted the Crown sought a starting point of only 10 months, describing it as “low for the Crown”. He indicated a starting point would be more “more in the nature of 15 to 18 months”.4 He then indicated there would be a combined uplift of three months to the starting point for the driving charges, bringing the final starting point to between 18 and 21 months.

[12]   He said there would have to be an uplift of three months for Mr Kelly’s “significant” previous convictions, and three months for breach of release conditions. This brought the adjusted sentence to between 24 and 27 months. Taking into account a discount for guilty pleas, his Honour said the end sentence would be between      15 months and two years. That would mean a guilty plea discount of between 11.1 and 37.5 per cent.

Sentence decision

[13]   I turn now to the sentence decision in the District Court. On 17 April 2020 Judge Crosbie delivered his final sentence decision.5 He did not revisit or discuss a starting point in relation to the lead charge of attempting to defeat the course of justice. He dedicated much of his sentencing remarks to considering Mr Kelly’s history of childhood issues and abuse in residential care, causing him to suffer from trust and authority issues, as well as PTSD and other mental health issues. The Judge believed Mr Kelly to understand his mental health and psychological issues and to be determined to do something about them.

2      R v Jones [2018] NZHC 984; Kelly v Police [2014] NZHC 3168; and Stevens v Police [2012] NZHC 871.

3      Kelly, above n 1, at [18].

4 At [19].

5      R v Kelly [2020] NZDC 6513.

[14]   His Honour noted that, what he had said as an indication of up to two years was more than either the appellant’s counsel or the Crown had submitted. Taking the attempt to defeat the course of justice offence as the lead charge, the Judge imposed a sentence of 16 months’ imprisonment. He thus appeared to take a slightly more merciful view of the offending and Mr Kelly’s personal circumstances. He was also sentenced to two months’ imprisonment for the driving charges, to be served concurrently. Finally, the Judge disqualified him from driving for a period of two years and six months.

Principles on appeal

[15]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.7 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.8 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.9

Submissions

Appellant’s submissions

[16]   Turning now to the appellant’s submissions, Ms Saunderson-Warner’s submissions initially were filed without having the benefit of seeing Judge Crosbie’s sentence indication notes. Not being Mr Kelly’s counsel at first instance, she only had

6      Criminal Procedure Act 2011, ss 250(2) and 250(3).

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

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

9      Skipper v R [2011] NZCA 250 at [28].

the “two years” sentence indication as recalled in the Judge’s final sentence decision and the final sentence of 16 months actually imposed by the Judge.10

[17]   Before me counsel noted the lack of case law relevant to the present case which is a factually unique case of defeating justice. However, she says Stevens provides some assistance.11 The offender there was stopped for a roadside breath test and gave her cousin’s details instead of her own. She was subsequently summonsed and repeated this false identity in a sworn affidavit in support of a plea of special reasons not to disqualify. A conviction was entered against her cousin before the deception was appreciated. While Heath J noted the offending was less serious than witness intimidation, he said:12

…any conduct that is designed to release the offender from criminal responsibility by endeavouring to secure a conviction against another is insidious. Like the cases involving suborning of witnesses, such conduct strikes at the heart of the criminal justice system.

Heath J found the sentence was not manifestly excessive and made no adverse comment as to the 12-month starting point adopted by the District Court Judge.

[18]   Ms Saunderson-Warner also cites Taylor v Police, a case where the offender gave a false name and address (relating to an actual person) when stopped by police and after producing an evidential breath test of 838 micrograms of alcohol per litre of breath.13 Conviction and sentence were entered against the name of that innocent person before the deception was discovered. In that case, the offender was the subject of a 12-month starting point.

[19]   Counsel submits the present offending is less serious than the two cited cases. She suggests those cases owe their greater seriousness to their propensity to strike more directly at the criminal justice system, and the fact they were more prolonged and significantly impacted innocent victims.

10     Kelly, above n 5, at [32]–[33].

11     Stevens, above n 2.

12 At [25].

13     Taylor v Police [2014] NZHC 2285.

[20]   She then cites a case more serious again, R v Jones, an authority cited by the Crown at first instance.14 In that case, a witness to a car crash causing four fatalities edited a video of the crash and destroyed the original recording. A starting point of 18 months was adopted and endorsed on appeal there. Ms Saunderson-Warner submits the present case is fundamentally an “avoiding apprehension” case and is less serious than false identity cases because it did not involve the court process, was not sustained and did not victimise anyone else. She submits a starting point of no more than nine months was appropriate here.

[21]   Counsel submits Mr Kelly should have received a further discount of 15 per cent for his personal mitigating circumstances including deprivation and negative mental health effects suffered as a result of abuse and neglect in state care.

[22]   As to the period of disqualification from driving, Ms Saunderson-Warner says two years was too long. She submits, because this was a bad case of dangerous driving, a starting point of only nine months was warranted. To reflect the additional driving while suspended charge, an uplift of three months could be made. If Mr Kelly had been charged with failing to stop, there would have been a mandatory cumulative disqualification of six months, such that a stern approach would be 18 months’ disqualification.

Respondent’s submissions

[23]   Mr Bates for the Crown says in response, a starting point of between 15 months and 18 months cannot be described as excessive, though arguing at first  instance    10 months was an appropriate starting point. Mr Bates cites a number of cases that deal with interference with witnesses.15 He accepted that the cases were of a different nature than the present offending, but said “the general principle is that any attempt to pervert the course of justice is likely to be met by a term of imprisonment.”

[24]   Given the dangerous nature of Mr Kelly’s driving and the fact he had explicitly told police at the time of his suspension that he would not stop for police, a significant

14     Jones, above n 2.

15     Miller v R [2014] NZCA 382; Ledgerwood v R [2017] NZHC 822; and Maney v R [2018] NZCA 193.

period of disqualification was appropriate. He concluded that given the appellant’s history and his offending in this case, the end sentence arrived at in the District Court of 16 months’ imprisonment cannot be considered in error or manifestly excessive.

Analysis

Attempting to defeat the course of justice

[25]   Turning to my analysis in this matter, and looking first at the attempting to defeat the course of justice charge, at the outset I need to say that in my view, the Judge erred in considering the appellant’s knowledge and use of the radio transmissions to be relevant to the defeating justice charge. As to the elements of the offence,16 the actus reus consists of some act (not normally a mere omission)17 taken by the offender that seeks to avoid criminal liability.18 The charging document here specifically reads “WILFULLY ATTEMPTED TO DEFEAT THE COURSE OF JUSTICE BY FAILING TO STOP WHEN SIGNALLED BY POLICE WHILE DRIVING SUSPENDED”. The Police Summary of Facts on which the appellant pleaded guilty defines his attempt to defeat justice as him failing to stop when required by the police constable. The comments subsequently made by the appellant over the radio were merely designed to goad the Constable and did not in any material way, as I see it, add to his attempt to defeat justice by failing to stop when required. The radio transmissions were not relevant to the offence. Additionally, in sentencing an offender, a sentencing court must take into account those facts express or implied that are essential to a plea of guilty, and may take into account facts agreed on by the prosecutor and the offender (emphasis added).19

[26]   A starting point of between 18 and 21 months for the lead offence of attempting to defeat the course of justice, in my view, was excessive. A sentencing court must take into account the seriousness of the type of offence charged in comparison with other offences, as indicated by the maximum penalties for the offences.20 However,

16 Crimes Act 1961, s 117(e).

17 R v Clark HC Hamilton CRI-2006-019-4626, 24 August 2006.

18 See Simon France (ed) Adams on Criminal Law – Offences and Defences (online ed, Thomson Reuters) [CA117.05(3) and (2)]; The Queen v Kane [1967] NZLR 60 (CA); and The Queen v Ramsay [1965] NZLR 1084 (SC).

19 Sentencing Act 2002, s 24(1).

20 Sentencing Act, s 8(b).

the offending here fits more naturally within a charge of failing to stop (with a maximum penalty of only three months’ imprisonment for a third offence)21 than attempting to defeat the course of justice (with a maximum penalty of seven years’ imprisonment). Thus, the inquiry should be more intensely focused on the gravity of the actual offending in this case. There should not be excessive weight placed on the maximum penalty available for charges which may have been chosen but might be seen possibly as inappropriate in all the circumstances.

[27]   Generally, counsel are correct to note the lack of comparable case law here. The Crimes Act offence of “wilfully attempt[ing]…to obstruct, prevent, pervert, or defeat the course of  justice”  captures  a  very  broad  range  of  offending.  As  Judge Crosbie noted, at the upper end there is forceful or threatening interference with witnesses outside court in the course of criminal proceedings. At the lower end, there are drivers who give a wrong name when stopped by police for enforcement purposes.

[28]   However, unlike the view taken in this case by the Judge, I consider the present offending to be less serious than that seen in Stevens and Taylor, discussed above. In Stevens, the fact a conviction and sentence was entered against the name of an innocent person, after the matter had proceeded through the courts and after the offender had sworn a false affidavit supporting her plea for special reasons not to disqualify, the offending was considerably more undermining of the administration of justice than here. As Heath J said in Stevens, such cases strike at the heart of the criminal justice system.22 However, that offending only attracted a starting point of 12 months. Similarly, in Taylor, the offending involved the giving of a false name which meant conviction and sentence was entered against an innocent person’s name after the criminal proceeding had made its way through the court process.

[29]   In R v Spratt the Court of Appeal found that a six-month sentence was appropriate for offending consisting of the offender taking one of two vials of blood of his taken in an evidential blood testing procedure and flushing it down the toilet at the police station. The remaining vial was still available to be used as evidence. The

21     Land Transport Act 1998, s 52A(5)(b).

22     Stevens, above n 2, at [25].

Court of Appeal found while a sentence of imprisonment was called for in principle, a term of six months’ imprisonment was a sufficient punishment.23

[30]   The offending in the present case, as I see it, strikes less at the heart of the administration of justice (and interferes with the administration of the course of justice less), and is more a case of ignoring court orders and avoiding apprehension by police. A starting point of something less than 12 months would be appropriate. Given there is an appreciable difference in the seriousness of the offending here than in the cases of Stevens and Taylor, and there is slightly more seriousness here (in terms of stated premeditated plan to not stop for police) than in Spratt, a starting point of nine months is appropriate in this case. I note this is the starting point urged upon Judge Crosbie at first instance by the appellant’s then-counsel and is only one month less than that suggested by the Crown before the Judge.

Other charges

[31]   Turning now to the other charges, the three-month uplift for the dangerous driving and driving while suspended charges was appropriate. The three-month uplift for the breach of release conditions was also available to the Judge and, in my view, is appropriate. That indicates a global starting point of 15 months.

Personal circumstances and guilty plea

[32]   Turning now to the appellant’s personal circumstances and guilty plea, the three-month uplift for Mr Kelly’s previous convictions is appropriate, given a full analysis of his conviction history which includes:

(a)perverting the course of justice;

(b)careless driving causing death or injury;

(c)four charges of dangerous driving;

(d)two charges of reckless driving;

23     R v Spratt [2007] 3 NZLR 810 (CA) at [32].

(e)careless driving;

(f)failing to stop and ascertain injury following an accident;

(g)failing to stop when signalled by police flashing lights and siren;

(h)failing to give information demanded on being stopped as a driver by police; and

(i)two charges of driving while disqualified.

That would bring a nominal sentence to 18 months.

[33]   A two-month discount to take account of Mr Kelly’s PTSD and his mental health issues suffered as a result of his time in state residential care as a child is appropriate here.

[34]   Finally, a 25 per cent discount of four months for Mr Kelly’s guilty pleas would bring the end sentence to one of 12 months. The end sentence imposed in the District Court was one of 16 months’ imprisonment. That four-month discrepancy is enough for this Court to find the end sentence as manifestly excessive here. That sentence, therefore, is set aside and I impose a sentence of 12 months’ imprisonment.

Disqualification period

[35]   Looking at the disqualification period, turning now to the charges of dangerous driving, this was a bad case which involved excessive speed, driving on the wrong side of the road and towards a police patrol car and only swerving to avoid collision at the last minute. A starting point of 12 months would be appropriate in light of the gravity of the offending. An uplift of six months to reflect the driving while suspended charge, given it is his third offence is appropriate.24 His stated predetermined plan to avoid apprehension for driving while suspended,25 is also relevant here. The minimum period of disqualification for a third driving while disqualified offence (as is the case

24     Land Transport Act, s 32(4)(b).

25 See above at [2].

here) is one year, so that would be cleared here.26 However, it would be inappropriate to take into account the failing to stop matter here, as that is already the subject of a penalty under the defeating the course of justice charge.27 Thus, the two-year disqualification period, in my view, was excessive. A period of 18 months’ disqualification should be substituted instead.

Conclusion

[36]   In conclusion, I find that this appeal must be allowed. The appellant’s sentences of imprisonment and disqualification are set aside. In their place sentences of 12 months’ imprisonment and 18 months’ disqualification from driving are imposed.

[37]   The special conditions at [34] of Judge Crosbie’s Sentencing Notes of 17 April 2020, the concurrent sentence of two months’ imprisonment on the driving charges, and the conviction and discharge on the radio communication matters (for the reasons the Judge notes at [36]) are to remain.

...................................................

Gendall J

Solicitors:
RPB Law, Dunedin

Copy to:

Sarah Saunderson-Warner, Barrister, Dunedin

26     Land Transport Act, s 32(4)(b).

27     See New Zealand Bill of Rights Act 1990, s 26(2).