Price v Police
[2019] NZHC 2123
•20 August 2019
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2019-443-22
[2019] NZHC 2123
BETWEEN LEIGH BRYAN PRICE
Appellant
AND
THE NEW ZEALAND POLICE
Respondent
Hearing: 20 August 2019 Appearances:
J M Woodcock for Appellant J E Bourke for Respondent
Judgment:
20 August 2019
JUDGMENT OF GRICE J
Background1
[1] Mr Price was sentenced to 10 months’ home detention in the District Court on 5 July 2019.2 He had earlier entered pleas of guilty on the following four charges:
(a)Two charges of possession of a cannabis plant;3
(b)One charge of presenting an imitation firearm;4 and
(c)One charge of possessing an imitation firearm while committing the offence of threatening grievous bodily harm.5
1 This decision was delivered orally on 20 August 2019. The written form has been edited and footnoted before distribution.
2 R v Price [2019] NZDC 13061.
3 Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2); maximum penalty of three months’ imprisonment or $500 fine.
4 Arms Act 1983, s52(2); maximum penalty of three months’ imprisonment or a fine of $1,000.
5 Section 54(2); maximum penalty of five years’ imprisonment.
LEIGH BRYAN PRICE v THE NEW ZEALAND POLICE [2019] NZHC 2123 [20 August 2019]
[2] Mr Price appeals his sentence on the grounds the sentence was manifestly excessive as the Judge erred by adopting a starting point that was too high.
Background
[3] The four charges against Mr Price arose from two separate incidents. The first charges of presenting an imitation firearm and possessing a cannabis plant arose on 16 January 2019. The second group of charges for possessing an imitation firearm while threatening grievous bodily harm and possessing a cannabis plant arose on 24 March 2019.
16 January 2019
[4] In relation to the events on 16 January 2019, in the early afternoon Mr Price was at home when the victim called in at his address to confront him about selling cannabis to children in the area. Mr Price came outside holding a “glock” style pistol in his right hand. He pointed it in the air and fired it twice. The victim was terrified and fled from the address as she feared for her life. She called the police who located Mr Price and searched his address. They discovered two race starter pistols with blank cartridge cases and 76 grams of cannabis. In an explanation for his offending, he said the cannabis was his for personal use and that he had not seen any “lady”.
24 March 2019
[5] On 24 March 2019 Mr Price became involved at a street argument in New Plymouth. He had parked his car. The victim parked his car behind Mr Price’s car and got out. When the victim began to walk away, Mr Price approached him. He yelled at the victim, then returned to his car to reach for his imitation pistol. He then pointed it at the victim before firing it three times in the victim’s direction. The victim tried to get away and fell into a bush. Mr Price followed him and directed the gun at him three more times. The imitation gun made orange flashes and bangs when it was fired. The victim stumbled out of the bushes clutching his abdomen before driving away.
[6] The police went to Mr Price’s address shortly afterwards. His car was parked out front and the bonnet was warm to the touch. His home and car were searched and 426 grams of cannabis was found.
[7] Two blanks were also recovered from the ground near Mr Price’s car. The victim suffered grazes to his hip, knee and hand. Mr Price admitted the cannabis offending but claimed to know nothing of the imitation gun offending.
The sentencing
[8] At the sentencing on 5 July 2019 the Judge noted that Mr Price had disputed the police summary of facts on which he had earlier based his guilty plea when he was interviewed for the PAC report. Counsel for Mr Price explained this by submitting Mr Price’s attempting to make himself look better in the eyes of the probation officer.
[9] The Judge summarised the relevant portions of Mr Price’s criminal history, which included convictions for drug, firearm violence and threatening offences. There were a small number of offences for breaching Court orders and bail.
[10] The Judge adopted a starting point of 12 months’ imprisonment for each of the sets of charges. The cumulative total adopted as the starting point was therefore two years’ imprisonment.
[11] The Judge then uplifted this by three months’ to recognise the aggravating features of the offending. They were Mr Price’s criminal history and the fact Mr Price was on bail when the second incident occurred.
[12] A seven-month discount was given to recognise the guilty pleas and Mr Price’s personal circumstances.
[13] The result was an end sentence of 20 months’ imprisonment which was converted to 12 months’ home detention. Orders were also made for destruction of both the cannabis and the imitation firearms.
Standard of appeal
[14] Mr Price has brought his appeal under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion, and therefore, must only be allowed if the Court is satisfied there has been (for any reason) first, an intrinsic error in the sentence imposed and secondly a different sentence should be imposed.6 The focus is on the final sentence and whether that was within the available range, rather than on the exact process by which it was reached.7 As the Court of Appeal in R v Peters said:8
[13] As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed rather than the precise process by which it is reached. Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component. This is very much such a case here.
Submissions and analysis
[15] The Judge noted in the decision that a starting point of 12 months’ imprisonment was adopted for each group of offences. He took the culminative 24 months’ imprisonment as a start point.
[16] However, the offences of 16 January only attract three months’ imprisonment for each offence. The Judge should have noted that the lead offence (of 24 March 2019) was that of possessing an imitation firearm while threatening grievous bodily harm, which has a maximum penalty of five years imprisonment.
[17] Putting that to one side, Mr Price argues the Judge adopted a starting point that was too high. He recognises there is no tariff decision for the offence of possessing an imitation firearm while threatening grievous bodily harm but says the starting point should have been 10 months imprisonment.
6 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.
7 Ripia v R [2011] NZCA 101 at [15].
8 R v Peters CA12/03, 14 May 2003 at [13].
[18] Ms Woodcock for Mr Price cited a number of decisions,9 I note those authorities are distinguishable as they involve different lead offences not involving guns and different circumstances to those of the present case.
[19] The most helpful as counsel agreed was that of R v Sykes.10 Mr Sykes was sentenced for threatening to kill and possessing a pistol. He became enraged after hearing a family discussion and began to smash items in the house. He threatened members of the family then obtained a pistol before approaching the victim and pointing it at her head and saying “I will fucking kill you.” He then walked around the lounge saying “I’m going to kill you, I’m going to kill them”. He threw the pistol on the ground before leaving. Although the gun was ready and loaded it could not be fired as the wrong size of ammunition had been loaded. On the lead charge of threatening to kill the Judge adopted a starting point of 12 months’ imprisonment, he increased that to 18 months’ in light of the repeated threats, the proximity of the victim and the use of a pistol.
[20] There are a number of similarities as well as differences between that case and the present. The similarities include pointing the gun to underscore a threat; repetition of the threats; the proximity of the defendant to the victim; and the use of a firearm or or in this case an imitation firearm.
[21] Sykes also involved several factors that make it more serious than the present case. First, the charge involved of threatening to kill which has a maximum sentence of seven years imprisonment.11 Whereas in this case the charge of possession of an imitation firearm while threatening grievous bodily harm carries a maximum period of five years imprisonment.12 An imitation firearm can never fire live rounds as Ms Woodcock emphasised. However, the gun in Sykes could have done so if it had been properly loaded. It is not clear from the judgment whether Mr Sykes knew it had been improperly loaded.
9 Baldwin v Police HC Wellington CRI-2005-485-40, 18 October 2005; Butler v Police HC Hamilton AP162/93, 13 December 1993; McKinlay v Police HC Rotorua CRI-2011-470-28, 28 November 2011; Dawson v Police [2012] NZHC 3298.
10 R v Sykes HC Christchurch CRI-2009-009-2603, 19 May 2009.
11 Crimes Act 1961, s 306.
12 Arms Act, s 54(2).
[22] Ms Woodcock also submits that Mr Sykes had repeated a threat to kill. That is not present here.
[23] However, in this case the gun actually fired blanks at the victim. That adds an element designed to evoke fear. The victim could not have known at that stage the gun was not real and so he was not at risk of being shot. In this case a victim was also pursued by Mr Price. Those are elements exacerbating the offending.
[24] Ms Woodcock for Mr Price referred to Faaleaga v R in which the Court of Appeal discussed key factors in assessing the culpability of threatening to kill or cause grievous bodily harm. The following have some relevance here:13
(a)The premeditation of the threats;
(b)The nature and frequency of the threats;
(c)Links to earlier violence;
(d)The ability of the offender to carry out the threat;
(e)Actual danger to the victim; and
(f)The use of a weapon.
[25] I recognise that Mr Price has not been convicted of threatening grievous bodily harm, so he has only a conviction for possessing an imitation firearm while threatening grievous bodily harm, nevertheless those factors I have listed are of some assistance in assessing an appropriate starting point.
[26] In the present case: a weapon was present; there was no actual danger to the victim; the threats were not able to be carried out due to the gun being an imitation; there was no earlier violence; but the threats were frequent and serious in one case involving six shots at close range and the imitation gun made realistic noises. While
13 Faaleaga v R [2011] NZCA 495 at [11].
there was limited premeditation before the threats were made nevertheless Mr Price was ready for trouble in that he had the imitation firearm to hand.
[27] In my view, considering all the factors, the starting point of 24 months’ imprisonment adopted by the Judge was too high in the circumstances. The Crown accepts that that might be the position although disagrees with the defence submissions as to the appropriate starting point. In the circumstances, I have reached a conclusion that 14 months’, or one year and two months’ imprisonment, is more realistic and appropriate.
[28] The method adopted by the Judge means that no appropriate recognition was given to the totality of the offending. If an uplift of four months’ imprisonment is applied to recognise Mr Price was also being sentenced for the other offending and this brings the sentence to 18 months’ imprisonment.
[29] A further uplift of three months’ imprisonment would recognise Mr Price’s criminal history and the fact the offences occurred while he was on bail, brings the sentence to 21 months’ imprisonment.
[30] Finally, the Judge gave a discount of 7 months’ imprisonment to recognise Mr Price’s guilty plea and his personal circumstances. This equates to 33 per cent discount of the modified sentence of 21 months that I have adopted. I do not propose altering that discount in light of the lower starting point, as on one view that would artificially lower or alter the Judge’s assessment is, of Mr Price’s personal circumstances in the case. It does not appear to be an inappropriately high discount. If 25 per cent is taken as the guilty plea discount, then Mr Price receives a near 8 per cent discount for the other personal circumstances mentioned in the decision.
[31] This reduces Mr Price’s sentence to 14 months imprisonment. Converting this to home detention in the usual way, results in an end sentence of seven months’ home detention.
[32] I believe home detention is the least restrictive sentence option available in light of Mr Price’s serious criminal history and the facts of this offending and that it involved guns.
Conclusion
[33] Therefore, I conclude the Judge erred by adopting a starting point that was too high. This rendered the end sentence manifestly excessive. The sentence of 10 months’ home dentition is quashed and substituted with a sentence of seven months’ home detention.14 The destruction orders in the District Court decision are confirmed.
[34] Accordingly, I allow the appeal. The sentence is quashed and substituted with a sentence of seven months home detention on the lead charge of possessing a firearm while threatening grievous bodily harm and one months home detention on each of the other charges all to be served concurrently.
Grice J
Solicitors:
Crown Law Office, Wellington for Respondent
14 To clarify, this starts on the previous commencement date of 5 July 2019.
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