Page v Police
[2020] NZHC 217
•20 February 2020
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2019-463-104
[2020] NZHC 217
BETWEEN BENJAMIN PAGE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 February 2020 Appearances:
The Appellant in person
G Banuelos for the Respondent
Judgment:
20 February 2020
JUDGMENT OF POWELL J
This judgment was delivered by me on 20 February 2020 at 4 pm Registrar/Deputy Registrar
Date:
PAGE v NEW ZEALAND POLICE [2020] NZHC 217 [20 February 2020]
[1] Following a Judge alone trial in the District Court at Rotorua the appellant, Benjamin Page, was convicted by Judge Hollister-Jones1 on charges of wilful damage2 and reckless driving relating to an incident that occurred on 23 May 2019.3
[2] On those charges, together with further charges of obstructing the Police,4 disorderly behaviour5 and threatening behaviour6 to which he had pleaded guilty, Mr Page was sentenced by Judge Hollister-Jones to two months community detention, 12 months supervision, and was disqualified from driving for 12 months.7
[3] Mr Page appeals against his convictions from the Judge alone trial and his overall sentence. With regard to the convictions Mr Page seeks leave to call additional witnesses to confirm his view of the incident, and submits that the sentence was simply excessive, particularly the disqualification.
The 23 May 2019 offending
[4] The oral judgment of Judge Hollister-Jones records that on 23 May 2019, Mr Page was driving on Hilcrest Avenue, Rotorua. A van, which had been following Mr Page, passed him when he pulled over to the side of the road. The occupants of the van had noted that Mr Page appeared to be driving erratically and when he stopped his car the occupants of the van turned the van around and stopped to see if Mr Page was all right. The evidence of the occupants was that when they stopped the van Mr Page was acting aggressively and in particular had taken his shirt off, and that he approached the passenger window of the van and said that he wanted to fight the two men in the van.
1 Police v Page [2019] NZDC 25350.
2 Summary Offences Act 1981, s 11(1). Maximum penalty of three months’ imprisonment or a fine not exceeding $2,000.
3 Land Transport Act 1998, s 35(1)(a). Maximum penalty of three months’ imprisonment or a fine not exceeding $4,500 and the court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.
4 Summary Offences Act 1981, s 23(a). Maximum penalty of three months’ imprisonment or a fine not exceeding $2,000.
5 Section 4(1)(a). Liable to a fine not exceeding $1,000.
6 Section 21(1)(a). Maximum penalty of three months’ imprisonment or a fine not exceeding $2,000.
7 Police v Page [2019] NZDC 23176.
[5] Thinking Mr Page was on drugs one of the occupants turned the van around, and the other, Mr Timoti, then got out of the van to take Mr Page’s keys from him. As he attempted to do so Mr Page drove into the side of the van and damaged the door.
District Court decision – Conviction
[6] At trial Judge Hollister-Jones accepted Mr Page’s explanation that at the time of the alleged offending he had not been on drugs, but rather had long-standing mental health issues arising out of a traumatic brain injury and had failed to take his medication. As a result Judge Hollister-Jones found that Mr Page was not intending to act aggressively and therefore the charge of disorderly behaviour could not be made out.8
[7] In relation to the charges of intentional damage and reckless driving Mr Page claimed to have been acting in self-defence. Although unsure whether self-defence under the Crimes Act 1961 was applicable, Judge Hollister-Jones concluded that although Mr Page perceived himself to be in a defensive situation, in attempting to get away from the occupants of the van the force Mr Page had used in driving into the side of the vehicle was unreasonable in the circumstances.9 In arriving at this conclusion, the Judge accepted that the evidence of both the van occupants and an independent witness, Ms Smith, that Mr Page had adequate room to drive around the victims’ vehicle but had opted not to. His Honour therefore found the charges of reckless driving and wilful damage to be made out and convictions were entered.
Sentencing decision
[8] When Mr Page appeared for sentence in respect of the 23 May 2019 incident he was, as noted, also sentenced on charges of obstructing the Police, disorderly behaviour and threatening behaviour.
[9] These additional convictions arose out of an incident that had taken place on 9 February 2019. On this occasion the Police were called to an incident at Mr Page’s
8 Police v Page [2019] NZDC 25350 at [16].
9 At [15].
home after his sister had begun to feel threatened by him. When the Police arrived, Mr Page was found shouting on the street and then subsequently barricaded himself inside the house, preventing his arrest.
[10] In sentencing Mr Page Judge Hollister-Jones had regard to a psychiatric report that noted Mr Page’s history of ADHD and his prior head trauma that had resulted in difficulties processing information. His Honour also referred to a pre-sentence report that identified Mr Page to be a low risk of re-offending if he remained on his medication. The pre-sentence report recommended a sentence of community detention.
[11] Noting that there were difficulties in imposing a sentence of community detention given that the proposed address was the address at which the 9 February 2019 incident had occurred, Judge Hollister-Jones sentenced Mr Page to 12 months supervision with the conditions that he attend an assessment for a short motivational programme and attend any other appropriate treatment, counselling or programme to the satisfaction of his probation officer. The Judge also imposed a sentence of two months community detention with a curfew from 8:00pm to 6:30 am daily, on the basis that such a sentence would bring home “the significance of all of this” to Mr Page, to ensure that he took his medication in the future. Finally, Mr Page was also disqualified from driving for 12 months.
Approach on appeal
[12] Section 229(1) of the Criminal Procedure Act 2011 (CPA) allows a person to appeal against their conviction to the High Court.10
[13] Section 232 of the CPA sets out that an appeal against conviction must be allowed if, in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any reason. In any other case the appeal will be dismissed.
10 Criminal Procedure Act 2011, s 230(b).
[14] An appeal against sentence is also governed by the CPA, and s 250(2) provides that the Court must allow an appeal against sentence if satisfied that for any reason, there is an error in the sentence imposed on conviction, and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.11
[15] The Court of Appeal in Tutakangahau v R recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.12 As such, the measure of error that must be shown, is that the sentence is “manifestly excessive”.13 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 the process by which the sentence is reached.
Discussion
[16] There is no dispute that new evidence may be adduced where it could not reasonably have been produced at trial and is sufficiently credible and cogent that its absence may have impeded the course of justice.14
[17] In in this case Mr Page explained variously that while he was aware that his proposed witnesses (“Justin”, “Gareth” and “a mate”) had witnessed the 23 May 2019 incident, he had thought that the Police would have interviewed them, and/or that it was not appropriate for him to contact potential Crown witnesses.
[18] There are a number of difficulties with Mr Page’s explanation. First, as Ms Banuelos, on behalf of the Police, confirmed at the hearing, the disclosure provided by the Crown showed clearly that the Police had not interviewed any witnesses matching those now identified by Mr Page. There was in fact no reference to such witnesses identified by Mr Page in any of the formal statements gathered by Police, including that of Ms Smith, and a statement obtained from another independent witness who was not ultimately called to give evidence as a result of personal issues.
11 Section 250(3).
12 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27].
13 At [26]–[27].
14 Cooper v R [2019] NZCA 651 at [18].
There was thus no reason for Mr Page or his counsel not to approach the witnesses Mr Page now seeks to rely upon in advance of the judge alone trial. On the contrary, Mr Page confirmed to me that he had in fact not advised his counsel that there were additional witnesses that he wished to call in his defence. Finally, Mr Page has confirmed that even since the trial five months ago he has not in fact sought to discuss the 23 May 2019 incident with any of the potential new witnesses and in fact seeks an adjournment to be able to do so. There is accordingly no information in front of the Court as to whether any of the proposed witnesses saw the incident or what in fact they saw.
[19] In the circumstances I agree with Ms Banuelos that there is insufficient basis to grant Mr Page leave to call additional evidence of the type he identified.15 Overall, I am satisfied that the additional evidence identified is neither fresh or cogent, nor, given the lack of detail, that its absence has created a real risk that the outcome of the trial was affected.
[20] There is otherwise no suggestion that Judge Hollister-Jones erred in his assessment of the evidence, as it is clear he simply preferred the evidence of the occupants of the van and Ms Smith over that of Mr Page as he was entitled to do. There is therefore no basis to set aside Judge Hollister-Jones conclusions and the appeal against conviction must be dismissed.
[21] With regard to the sentence appeal Mr Page made no specific submissions as to why any particular part of his sentence was in any way excessive given Judge Hollister-Jones’ findings and the nature of the 9 February 2019 incident. Instead, having regard to the nature of Mr Page’s offending as summarised in the District Court judgment, the statutory maximum of three months’ imprisonment and the pre-sentence report, I am satisfied that Judge Hollister-Jones did not err in imposing his sentence but rather showed considerable care and sensitivity in the choice of sentence, with its primary aim being to ensure that Mr Page realised the seriousness of his actions and took his medication in the future. While Mr Page explained to me that he had been receiving support from the Accident Compensation Corporation and
15 Lundy v R [2013] UKPC 28 at [117] citing R v Bain [2004] 1 NZLR 638 (CA) at [22].
that this in his view somewhat took away the need for the 12 months supervision, he subsequently confirmed that the support he was receiving from the Corporation has been curtailed due to security concerns from the provider related to medication issues. Such an outcome would suggest that the supervision component of the sentence is appropriate, and there is likewise no fault with the imposition of community detention and the disqualification from driving. As a result, the sentence appeal must also be dismissed.
Decision
[22]The appeal is dismissed.
Powell J
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