R v Lloyd
[2022] NZHC 1044
•12 May 2022
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2018-029-1149
[2022] NZHC 1044
THE QUEEN v
HETA LENNOD LLOYD
Defendant
Hearing: 12 May 2022 Appearances:
MB Smith for the Crown
S Thode and WT Main for the Defendant
Sentenced:
12 May 2022
SENTENCING NOTES OF FITZGERALD J
Solicitors: Marsden Woods Inskip Smith, Whangarei Thode Utting & Co, Albany
R v LLOYD [2022] NZHC 1044 [12 May 2022]
Introduction
[1] Mr Lloyd, you appear for sentencing today having been found guilty by a jury of the following charges, all of which arise out of events which occurred on 25 July 2018:
(a)two charges of using a firearm against a law enforcement officer;1
(b)one charge of unlawful possession of a firearm;2
(c)one charge of unlawful possession of explosives (being ammunition);3
(d)one charge of unlawful possession of an offensive weapon;4
(e)one charge of driving while disqualified (third or subsequent);5
(f)one charge of driving dangerously;6
(g)one charge of failing to stop when followed by red and blue flashing lights (second offence);7
(h)one charge of possessing a methamphetamine utensil;8 and
(i)two charges of possessing a Class C controlled drug.9
[2] You are also to be sentenced on charges arising out of offending on 18 August 2018, to which you pleaded guilty in March last year. They are one charge of assault
1 Crimes Act 1961, s 198A(1). Maximum penalty 14 years’ imprisonment.
2 Arms Act 1983, s 45(1)(b). Maximum penalty 4 years’ imprisonment and/or $5,000 fine.
3 Arms Act 1983, s 45(1). Maximum penalty 4 years’ imprisonment and/or $5,000 fine.
4 Crimes Act 1961, s 202A(4)(a). Maximum penalty 3 years’ imprisonment.
5 Land Transport Act 1998, s 32(1)(a) and (4). Maximum penalty 2 years’ imprisonment or $6,000 fine; minimum 1 year’s disqualification.
6 Land Transport Act 1998, s 35(1)(b) and (2). Maximum penalty 3 months’ imprisonment or
$4,500 fine; minimum 6 months’ disqualification.
7 Land Transport Act 1998, s 52A(1)(a)(ii), (4) and (6). Maximum penalty $10,000 fine and 1 year’s disqualification.
8 Misuse of Drugs Act 1975, s 13(1)(a) and (3). Maximum penalty 1 year’s imprisonment and/or
$500 fine.
9 Misuse of Drugs Act 1975, s 7(1)(a) and 2(b). Maximum penalty 3 months’ imprisonment and/or
$500 fine.
with a weapon which was ramming a police car with your car,10 one charge of resisting arrest,11 and one charge of possession of methamphetamine.12
[3] As I am sure Mrs Thode has explained to you, the charges of using a firearm against a law enforcement officer are third strike offences. Because of that, and as the law currently stands, the Sentencing Act requires me to sentence you to the maximum sentence of 14 years’ imprisonment13 – unless I am satisfied that that sentence would be so disproportionately severe as to breach s 9 of the New Zealand Bill of Rights Act 1990.14 To explain, s 9 of the Bill of Rights Act provides that everyone has the right not to be subject to “disproportionately severe” punishment.
[4] If I conclude that to sentence you to the maximum penalty of 14 years’ imprisonment does breach s 9 of the Bill of Rights Act, I am required to sentence you in accordance with normal sentencing principles.15 If, on the other hand, I conclude that to sentence you to 14 years’ imprisonment does not breach s 9 of the Bill of Rights Act, the Sentencing Act requires me to order that you serve that 14 year sentence without parole, unless I am satisfied that it would be “manifestly unjust” to make that order as to parole.16
[5] Given the nature of this sentencing, and that it does involve third strike offending, there is a fair bit to work through, and it is important that you and those here present today, and the community more generally, understand the basis upon which I am sentencing you today.
Facts
[6] I am first going to summarise the facts of your offending. They will be well known to you and those others here but again it is important the community knows the basis of the sentencing.
10 Crimes Act 1961, s 202C. Maximum penalty 5 years’ imprisonment.
11 Summary Offences Act 1981, s 23(a). Maximum penalty 3 months’ imprisonment or $2,000 fine.
12 Misuse of Drugs Act 1975, s 7(1)(a) and (2)(a). Maximum penalty 6 months’ imprisonment and/or
$1,000 fine.
13 Sentencing Act 2002, s 86D(2).
14 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.
15 At [252] per Glazebrook J and [231] per O’Regan and Arnold JJ.
16 Sentencing Act, s 86D(3).
July offending
[7] On 30 August 2017, you were disqualified from driving for a period of one year. You have seven previous convictions for driving while disqualified, and one previous conviction for driving while licence suspended or revoked.
[8] On 25 July 2018 at about 9 pm, you were driving along State Highway 1 through Awanui in a Ford Falcon vehicle. You passed through a police check point. You accelerated, pulling out onto the right-hand lane, and overtook the vehicle in front of you on a blind corner. The two police officers manning that check point activated their flashing red and blue lights and began pursuing you.
[9] You continued to drive dangerously, reaching speeds of up to 140 kilometres per hour. The pursuit carried on, on rural roads in Northland.
[10] At around 9.33 pm, you presented a firearm out of the driver’s window and fired a single shot into the air. It is accepted that this was not aimed at the police, and they continued to pursue your vehicle.
[11] At around 9.39 pm, you again presented the firearm out of the driver’s window, and fired a second shot into the air. Again, it is accepted that this was not aimed at the pursuing police officers.
[12] Police continued the pursuit onto a sand track that led down to 90 Mile Beach. You came to a stop about 400 metres along the beach. You drove a few metres north on the beach, before turning south again. You then stopped the car and went on foot into the forest. Due to the firearm presented, the pursuing police officers abandoned the chase.
[13] The Armed Offenders Squad, including a dog handler, attended the scene where your vehicle was abandoned. The dog handler commenced a track search. While tracking, they found several items in bushland near your vehicle, including a cellphone and a container with a glass pipe, several point bags and a cut straw inside. The cellphone had an SD card containing several photographs of your partner.
[14] The next day, on 26 July, police conducted an examination of the vehicle. They found a number of items including shotgun and rifle ammunition, a curved blade knife, two tins containing a total of 0.69 grams of cannabis head, and a cannabis grinder containing 15 cannabis seeds.
[15] Fairly early on the morning of 26 July, a member of the public was exercising his dogs on 90 Mile Beach when he noticed a male and female crest a sand dune, from the direction of the forest. It is not in dispute that this was you and your partner. The witness drove you both to the Waipapa Ramp.
[16] You gave evidence at trial that you were not the driver of the Ford Falcon on the evening in question, and had been at a relative’s house at the time, travelling to 90 Mile Beach only the next morning to help your partner find her car. The jury’s verdicts meant that they rejected that as being a reasonable possibility, and instead that they were sure that it was you who had been the driver of the car. I understand from reading the pre-sentence report filed for this sentencing that you now accept your offending, and on reflection, that you should have pleaded guilty from the outset.
August offending
[17] Turning now to the August offending, on 18 August 2018 at about 12.30pm, two off-duty police officers were in the beach area at Ahipara. They saw a vehicle parked nearby. They identified the occupants as you and your partner, and were aware that you were wanted by police for the July offending. They informed on-duty officers in Kaitaia.
[18] Police then observed you driving from the beach, driving dangerously by overtaking three vehicles on a blind corner and at speeds over 100 kilometres per hour.
[19] The responding police officers, including the Armed Offenders Squad and dog handlers, then arrived and began a search for you. At about 1.15 pm they found you and signalled for you to stop by activating their red and blue lights. You accelerated away and drove north.
[20] Police then deployed “stinger” road spikes. You attempted to avoid them but your front right wheel was punctured.
[21] The pursuit continued north and onto a gravel road, which in combination with the tyre puncture, slowed you down. You then began throwing objects at police and this included steel tools, such as ratchets and tyre irons.
[22] As the pursuit continued, it reached a sharp corner where you spun out and drove straight into a pursuing police car, causing a head-on collision. You then accelerated and began pushing the police vehicle backwards down the steep hill and towards the edge of a drop off. Other police officers quickly disabled your vehicle.
[23] When police approached the driver’s door to arrest you, you struggled violently throughout the arrest procedure until you were subsequently handcuffed.
[24] A later search of your vehicle located two plastic point bags containing methamphetamine, as well as a broken methamphetamine pipe.
[25] The two police officers occupying the police vehicle that was rammed were uninjured.
[26] You admitted these facts and as noted, pleaded guilty to the resulting charges at the outset of your original trial.
Sentencing approach
[27] I have already outlined the implications of the three strikes law and the key issues that arise today. The first is whether to sentence you to the maximum term of imprisonment of 14 years would be so disproportionately severe that it would breach s 9 of the Bill of Rights Act.
[28] The nature and the length of the sentence that would have been imposed “but for” the three strikes regime is relevant to this assessment.17 So too the nature of the
17 Phillips v R [2021] NZCA 651, (2021) 12 HRNZ 904 at [28(a)–(b)].
offending.18 The Supreme Court has confirmed that there is a high threshold for a sentence to breach s 9. The sentence must be so severe so as to “shock the national conscience”19 or “outrage standards of decency”.20 A sentence which is simply severe, disproportionate or manifestly excessive will not be enough.21
[29] So that is the first question that I will address. If I am satisfied that sentencing you to the maximum term of imprisonment of 14 years would not breach s 9, then I must go on to consider whether it would be manifestly unjust to order you to serve that sentence without parole. Again, the sentence that would have been imposed but for the three strikes regime is relevant to that issue.22
The sentence that would have been imposed but for the three strikes regime
[30] So because of that I turn first to the sentence that would have been imposed but for the three strikes regime.
Starting point
[31] I start with the July offending. Plainly, the lead or most serious offence is the use of a firearm against a law enforcement officer. There is no guideline judgment for this offence, so sentencing is assessed by way of comparison with similar cases.
[32] As I have said, the maximum penalty for this offence is 14 years’ imprisonment. This shows Parliament’s intention “that those using firearms against law enforcement officers should be dealt with severely”.23 Police officers on patrol in New Zealand are largely unarmed. Deterrence must be a “major consideration” in sentencing.24
18 Phillips v R, above n 17, at [28(c)].
19 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [289] per Tipping J as cited in Fitzgerald v R, above n 14, at [77] per Winkelmann CJ.
20 Taunoa v Attorney-General, above n 19, at [92] per Elias CJ as cited in Fitzgerald v R, above n 14, at [77] per Winkelmann CJ.
21 Fitzgerald v R, above n 14, at [161] per O’Regan and Arnold JJ.
22 R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [108(d)].
23 R v Taylor CA407/88, 9 May 1989 at 6 as cited in Tereora v R [2015] NZCA 120 at [36]; and R v Samuels [2009] NZCA 153 at [13].
24 R v Taylor, above n 23, at 6.
[33] The lawyers for the Crown and yourself have referred me to several cases involving the use of firearms against police. Based on the cases the Crown has referred to, it suggests a starting point of six to seven years’ imprisonment.25 Your lawyer says that all of the July offending should be seen as one set of offending, and on this basis, she suggests a global starting point of around four and a half to five years’ imprisonment.26
[34] Given the very different nature of some of the charges which arise out of the July offending, I consider the appropriate approach is to adopt a starting point for the lead charges of using a firearm against a law enforcement officer, and then consider if an uplift is warranted for the balance of the July offending.27
[35] The Crown suggests two aggravating factors of your offending: violence and use of a weapon, and the fact the victims were officers acting in the course of their duties. In my view, both factors are inherent in the offence of using a firearm against a law enforcement officer. I accept, however, that the fact two shots were fired is an aggravating factor, though not significantly so, at least in comparison with some of the cases to which I have been referred. The Crown has not suggested any other aggravating factors, and I am not aware of any either. I take into account that the events took place on a remote road in Northland, so the firing of shots into the air did not have an obvious risk of serious injury or death to members of the public, unlike some of the other cases which I have considered.28
[36]There are no mitigating features of your offending.
[37] Against this backdrop, I have read all of the cases to which I have been referred, and a few others. I consider your offending to be less serious than in a case called Kite (eight-year starting point upheld on appeal), in which two shots were fired directly at a police officer;29 much less serious than in a case called Samuels (in which a 12 year
25 R v Wells HC Auckland CRI-2003-092-26964, 30 April 2004; and R v Atkinson [1990] 2 NZLR 513 (CA).
26 Counsel for Mr Lloyd referred to Cassidy v R [2021] NZHC 873; R v Wells, above n 25; and R v Kite [2018] NZHC 409.
27 See R v Kite, above n 26.
28 As in, for example, R v Ma’anaiama [2020] NZHC 551 at [23(c)].
29 Kite v R [2018] NZCA 485; and see R v Kite, above n 26.
starting point was adopted), in which in a vehicle chase, four shots were fired, aimed at the pursuing police, and at the end of the chase, the offender advanced to police on foot and aimed his gun directly at a constable;30 and as I discussed with Mrs Thode, earlier less serious than in Cassidy (in which a 10 year starting point was upheld on appeal, though considered at the top of the range), in which during a police pursuit, the offender leaned out of the driver’s window and discharged a firearm three times in the direction of the police vehicle, hitting it on the last occasion.31
[38] I consider your offending to be most comparable to cases called Atkinson and Wells. In Atkinson, the appellant and an associate fled the scene of a burglary.32 They were pursued by police. During the chase, the appellant fired a warning shot from a firearm into the air. The sentencing Judge imposed a sentence of six years’ imprisonment for burglary in conjunction with using a firearm against police and the Court of Appeal upheld that sentence.
[39] In Wells, the offender was pursued after refusing to stop his car for police. He fired at least two shots backwards in the direction of the police vehicle at a distance of approximately 100 metres.33 Harrison J held that a starting point of at least six years was appropriate, noting that the offending was more serious than in Atkinson because the shots were fired “not upwards in the air as a warning, but directly back towards the pursuing police vehicle …”.34
[40] Both Atkinson and Wells are slightly older cases (1988 and 2004 respectively), though they have been cited in a number of more recent sentencing decisions involving the use of firearms against police – particularly as examples of cases where the offender was not specifically aiming at police.35
30 R v Samuels, above n 23.
31 Cassidy v R, above n 26.
32 R v Atkinson, above n 25.
33 R v Wells, above n 25.
34 At [10].
35 See for example R v Eddington [2016] NZHC 434 at [27], n 6; R v Hartley [2012] NZHC 2124 at [24], n 3; and R v Shaw HC Timaru CRI 2009-045-631, 16 December 2009 at [12]–[13].
[41] In terms of cases that are less serious than the present offending, these tend to be where the firearm was not actually discharged. An example is the sentencing in Hartley,36 in which a four-year starting point was adopted.
[42] I consider your offending to be less serious than Wells, because you fired the shots into the air as a deterrent, rather than aiming at the officers or firing in the direction of their vehicle. Your case is also different to Atkinson, where there was a six-year sentence for charges of burglary and use of a firearm. As noted though, that case is now a little dated.37 As in Atkinson, the fact that you had a firearm with you and were prepared to use it carried the risk that you might have resorted to using it for even more serious purposes. As I have said, using a firearm in any way against police is to be treated seriously and deterrence is a major consideration in sentencing you today.
[43] Taking into account all of the cases I have read, I consider a starting point of five years and nine months’ imprisonment is appropriate.
Uplift for remaining July offending
[44] I consider that an uplift of three months’ imprisonment is appropriate for the remaining July offending. This takes the adjusted starting point for the July 2018 offending to six years’ imprisonment.
Uplift for August offending
[45] I turn now to consider the August offending. If this offending had been subject to a freestanding sentence, it could have attracted a sentence of around 20 months’ imprisonment. The charge arising from ramming the police vehicle with your car is serious, and carries a maximum penalty of five years’ imprisonment. I was not referred by counsel to any authorities in relation to the August offending, but taking into account what comparable cases I have been able to find, and in particular, those called
36 R v Hartley, above n 35 (police arrived at offender’s house, offender retrieved loaded shot gun and pointed it directly at officer, then shot by police and disarmed). See also R v Harris [2008] NZCA 214.
37 See R v Shaw, above n 35, at [13]–[15].
Waa38 and Manuel,39 I consider a starting point of 18 months on the charge of assault with a weapon, plus an uplift of two months for the remaining charges, would have been appropriate.
[46] I have considered whether the sentences for the July and August offending would have been imposed concurrently or cumulatively.40 On balance, I think concurrent sentences would have been appropriate. The July offending and August offending are broadly similar in nature.41 Both incidents involved police pursuits, with you taking extreme measures to avoid apprehension by police. I also consider that both sets of offending form a connected series of events.42 The August offending arose out of the fact you were wanted by police for the July offending. It occurred a short time after the July offending. In effect, you were seeking to evade police across this entire time period, and both your July and August offending arose out of that event.
[47] Given this, when considering what the appropriate sentence would be “but for” the three strikes regime, the appropriate course in my view would have been a significant uplift on the July offending to recognise the August offending, rather than a separate cumulative sentence. Your lawyer submits that a three-month uplift is appropriate, given that you have already been sentenced for the majority of the August offending. The Crown did not address what the uplift for the August offending should be, beyond suggesting a “significant” one, in the event the offending did not attract a cumulative sentence. I consider that a one-year uplift would be appropriate. On this basis, the adjusted starting point is seven years’ imprisonment.
[48] I turn then to totality; whatever approach is adopted, I must still stand back and consider whether this starting point should be adjusted to reflect the totality of your offending. Your lawyer suggests an adjusted starting point of five years’ imprisonment for all of your offending, taking into account totality. The Crown accepts that there ought to be consideration of totality. Standing back, I would have considered an
38 Waa v Police HC Masterton CRI-2004-435-2, 21 May 2004.
39 Manuel v Police [2014] NZHC 2648.
40 Sentencing Act, s 83.
41 Section 84(2). This conclusion is further supported by the fact that the August offending was used as propensity evidence in relation to the July offending.
42 Section 84(2) and (3).
adjusted starting point of six years and six months’ imprisonment appropriate for all your July and August offending for which I am sentencing you today.
Personal circumstances
[49] I now consider your personal aggravating and mitigating factors, to determine whether that starting point should be adjusted up or down.
[50] In terms of aggravating factors, you have a significant criminal history dating back to 2008, for a range of offences, including possession of firearms and offensive weapons, breaches of various Court orders, dishonesty, aggravated robbery, driving offences, and some (albeit minor) drug offending.
[51] Your lawyer acknowledges that given the number and nature of your prior convictions, an uplift of around six months’ imprisonment is appropriate and I agree.
[52]I turn now to personal mitigating factors.
[53] I have received a helpful and detailed cultural report prepared by Dr Jarrod Gilbert. It is not necessary or appropriate for me to address the detail of that report here in open court; you and the lawyers here today are aware of its contents. But it is necessary for me to highlight the key points arising out of that report and that is because sentencing is a public process:
(a)You are 31 years old and are of Te Arawa and Ngāpuhi descent.
(b)On any view, your upbringing was very difficult and highly dysfunctional. Your father left when you were a toddler. The remaining environment was very difficult for you and your older sister, who essentially took on a mother role for you. You were exposed to alcohol, drugs and violence from a very young age, and this no doubt “normalised” such behaviour to you.
(c)At age nine, you were sent to live with an uncle, which deeply traumatised you. Your behaviour became increasingly troubled and unlawful.
(d)You started smoking cannabis at around age six, supplied by a relative. You started smoking methamphetamine at aged 12, first offered by a gang member then residing in your home. You looked up to him.
(e)As a young teenager, you began prospecting with the Tribesmen gang. Around this time, you were sent to several boys’ home placements. You describe this experience as positive: you did not steal or do drugs during that time, although you started again when you left the homes.
(f)Just before your eighteenth birthday, your uncle died in a car crash after you had argued and you blame yourself for his death.
(g)Not long after this, you were sent to “adult jail” for the first time. You say you found a sense of belonging in prison and with the Tribesmen gang, which you later joined. You have also been a member of the Mongrel Mob.
(h)Since 2010, you have been in and out of prison, with your longest stint outside in your adult years being seven months on EM bail while awaiting trial on the current charges. You describe this period as “the best” in your life. You attribute your positive behaviour and being methamphetamine-free to your partner and her children and you have reiterated those comments today Mr Lloyd in what you have said today.
[54] I have also received a psychologist’s report prepared by Mr Jim van Rensburg. It canvasses similar ground to that in Dr Gilbert’s report, but also noting that:
(a)you were diagnosed with ADHD as a child, although you have never received treatment;
(b)your offending pattern is marked by repetitive rule breaking of a relatively low tariff nature;
(c)you are at a high risk of future general offending, although the offending will likely be of a low tariff nature, and this risk can be reduced by appropriate rehabilitation programmes, and if you refrain from using alcohol and drugs;
(d)you suffer from some mental health problems. You used to be treated for depression and you have current symptoms consistent with PTSD;
(e)You say that you have stopped using methamphetamine, which I say is an evil drug, and there is no suggestion of drug use, or reoffending during the period you were on EM bail and living with your partner and her family. You are clearly in need of suitable offence-related treatment, which you yourself accept;
(f)you have not received any treatment, except for a partially completed alcohol and drug programme in prison;
(g)upon release, you have plans to start a pro-social lifestyle with employment, and to create a home with your partner. Mr van Rensburg says that your positive relationship with your partner may be the catalyst that will enable you to desist from crime, and having read all of the material available to me, I would agree with that assessment.
[55] I have also received a pre-sentence report from the Department of Corrections. It echoes the themes from the reports I have just discussed. You say that you have come to a time in your life where you believe you are ready and able to make changes. You acknowledged that you can only do this with counselling and positive support.
[56] I accept that there is a clear causal link between your dysfunctional and deprived background, and your offending.43 Having regard to discounts given in other
43 Carr v R [2020] NZCA 357 at [65].
cases of a similar nature, I would have awarded a discount of 20 percent to recognise these factors.
[57] Turning now to your rehabilitative prospects, your lawyer submits that you have been proactive in trying to turn your life around. You are in a loving, stable relationship which has now lasted for four years. The materials put before the Court today indicate that you may well have reached a turning point in your life. You recently spent seven months on EM bail, during which time you did not reoffend or breach bail. As noted, you describe it as the best time in your adult life. During this period, you also voluntarily arranged one-on-one counselling with Te Hā Oranga and were accepted into the programme; however, this was unable to go ahead due to COVID-19 restrictions. I accept that you are motivated to deal with your issues and try to break your pattern of offending.
[58] I have also received and read letters in support from your friends and whānau, including your sister. The letters from your sister and your partner’s mother are particularly insightful. I also want to make particular note of the letter from your neighbour while you were on EM bail to your partner’s home. He gains no benefit from what he says in his letter. He observes that you treated him with “respect and honesty”, which he quite frankly says he was not expecting from someone with your background. He was impressed with your determination to be a good role model to your partner’s children. He refers to the fact that before you left for court for your trial, you gave him and his wife a large fish hook which you had carved to say thank you for everything they had done for you and your partner while you had been away. Others refer to your carving skills. These things may seem like small matters, but they give the Court a window into the stage of your life that you are at, and that you are, hopefully, in a position where rehabilitation could become a focus for you going forward.
[59] I am satisfied, therefore, that while there will no doubt be difficulties, you are motivated to rehabilitate and there are prospects in this regard. I consider that a further five percent discount would have been appropriate for this factor.
[60] I turn now to remorse. It is good to see that you have now taken responsibility for your offending and expressed remorse for your behaviour. However, I must temper that by the fact that you did not plead guilty to the July offending, and instead went through a full trial, all the while denying your involvement. In these circumstances, and taking into account the discounts I have already indicated for your background and prospects of rehabilitation, I do not consider a further and separate discount for remorse is required.
[61] Your lawyer notes that you spent seven months on EM bail in respect of the present charges. While no particular discount is sought, given the restrictive conditions (including a 24 hour curfew) and your compliance with your conditions of bail, I consider a discount of two months’ imprisonment would have been appropriate.44
[62] Turning finally to your guilty pleas, you pleaded guilty to the August offending on the morning of your first trial. Your lawyer suggests a 10 to 15 percent discount, given that your pleas shortened the trial considerably due to a number of witnesses not being required. Plainly any such discounts can only apply to the charges to which you pleaded guilty, and not the charges that proceeded to trial.45
[63] A discount of 10 percent from the 12 month uplift for that offending is, rounded, a one-month discount, and that is the discount that I would have allowed.
[64] Applying these adjustments to the starting point of six years and six months takes the end sentence that would have been imposed, but for the three strikes regime, to five years and one month’s imprisonment.46
44 Sentencing Act, s 9(2)(h) and (3A).
45 Agar v R [2021] NZCA 350 at [37]; and see Simon France (ed) Adams on Criminal Law – Sentencing (looseleaf ed, Thomson Reuters) at [SA9.18(1)].
46 This end sentence can be reached via two different methods. First, by converting the month uplifts/discounts into percentages of the 6 year, 6 month adjusted starting point (7.7% uplift for previous convictions less discounts of 20% for cultural report, 5% for rehabilitative prospects, 2.6% for time spent on EM bail and 1.3% for guilty pleas = overall discount of approximately 21%). Second, by converting the percentage discounts into (rounded) month discounts (6 month uplift for previous convictions less discounts of 16 months for cultural report, 4 months for rehabilitative prospects, 2 months for time spent on EM bail and 1 month for guilty pleas = overall discount of 17 months). Both methods result in an end sentence of 61 months, or 5 years and 1 month.
[65] Your lawyer submits in her written submissions that it would have been open to the Court to impose a sentence of intensive supervision or home detention, given your personal circumstances. I am unable to agree. In my view, imprisonment is clearly the least restrictive sentence available, given the seriousness of your offending, the need for deterrence, and your lengthy criminal history.
[66] Accordingly, but for the three strikes regime, I would have sentenced you to five years and one month’s imprisonment. I have considered whether, in that scenario, it would have been necessary to impose a minimum period of imprisonment.47 I do not consider that a sentence where the normal approach of an offender being eligible for parole after serving only one-third of their sentence would adequately meet the sentencing principles at play in this case, and in particular, denunciation and deterrence.48 I would have therefore imposed a minimum period of imprisonment of approximately 40 percent, or two years imprisonment. I observe that given you have already spent approximately 18 months in custody on the present charges, you would be eligible for parole in the not too distant future on this approach to sentencing.
Does sentencing you to the maximum term breach s 9 of the Bill of Rights Act?
[67] I turn now to consider whether sentencing you to the maximum term of 14 years’ imprisonment would be so disproportionately severe as to breach s 9 of the Bill of Rights Act.
[68] The Supreme Court said in a case called Fitzgerald that third strike sentences which are in breach of s 9 are likely to be rare.49 A sentence which is simply severe, disproportionate or manifestly excessive will not meet the high threshold.50 In a more recent decision called Matara, the Court of Appeal noted that in practice, experience since Fitzgerald suggests that such cases are not necessarily rare.51 The Court observed that “[t]hird strike sentencing is capable of producing grossly
47 Sentencing Act, s 86.
48 Parole Act 2002, s 84(1).
49 Fitzgerald v R, above n 14, at [231] per O’Regan and Arnold JJ; and see Morgan v R [2022] NZCA 112 at [6].
50 Fitzgerald v R, above n 14, at [161] per O’Regan and Arnold JJ.
51 Matara v R [2021] NZCA 692, (2021) 12 HRNZ 944 at [73].
disproportionate outcomes whenever the otherwise appropriate sentence is a fraction of the maximum penalty.”52
[69] The Court of Appeal also said in a case called Phillips that important factors when considering whether a sentence breaches s 9 of the Bill of Rights Act include:53
(a)any difference in the nature of the sentence that would have otherwise been imposed;
(b)the difference between any prison sentence that would have been imposed but for the three strikes regime and the prison sentence to be imposed under the three strikes regime. This may involve more than simply the multiplicative difference between the two sentences, and should take into account the actual difference in years between the sentence imposed and that which would have otherwise been imposed but for the three strikes regime; and
(c)thirdly, the nature of the offending, which requires an assessment of whether or not the defendant is plainly an inadvertent and unforeseen casualty of the three strikes regime.
[70] At first blush, given your conviction history and the nature of offending for which I am sentencing you today, it might not be readily apparent that to sentence you to 14 years’ imprisonment would meet the high threshold of breaching s 9 of the Bill of Rights Act. As the Crown emphasises, your current offending is serious. You have an extensive criminal history. But for the three strikes regime, you would have been sentenced to a term of imprisonment in any event.
[71] But given the sheer length of the sentence that I would be required to impose on you under the three strikes regime, namely 14 years, and particularly given I am being asked to order that the sentence be served without parole, these “headline” points command more detailed consideration.
52 At [73].
53 Phillips v R, above n 17, at [28]; and Mitai-Ngatai v R [2021] NZCA 695 at [25].
[72] Turning first to the nature of your offending. Your index offending is plainly serious. But are the sentencing principles, including that of rehabilitation, met by what could well be a crushing response? While inherently serious, your offending is not the most serious offending of its kind. That is highlighted by even the Crown’s suggested starting point of six to seven years’ imprisonment, which is less than or equal to half of the maximum penalty.
[73] You have an extensive and lengthy criminal history, peppered with a range of offence types. It is plainly of concern. But the three strikes regime was said by the politicians when introducing the legislation to target offenders who “continu[e] to commit very serious offences that victimise people”.54 As the Court of Appeal has noted, the types of offence which trigger a strike warning, termed a “serious violence offence”, means that the term is in many respects a misnomer, as offending that comes within the definition may not involve any violence at all, and may not be especially serious.55
[74] That is when it is important to consider the nature of your earlier strike offending, which has been a focus of inquiry in other third strikes cases, including and following Fitzgerald. Your first strike was given on a charge of indecent assault. You had just been released from prison and were drunk. Following crashing your car and police attending, you were transported to the police station by a female police officer. You stroked her arm and leg, and while doing so, leaned in closer to her. After being told to back off twice, you desisted, but later engaged in brief but similar conduct while breath test procedures were carried out at the police station. The sentencing Judge described that offending at the “lower end of the scale”.56 You were sentenced on this and an associated charge to two months and seven days’ imprisonment (which given the very precise sentence, may have reflected time served). This is not the type of offending that the public would, in my view, expect to be captured by the three strikes regime, and is similar to the third strike offences in Fitzgerald and Phillips.
54 (18 May 2010) 663 NZPD 10922 (emphasis added).
55 Matara v R, above n 52, at [31].
56 Police v Brass DC Kaitaia CRI-2012-029-573, 19 July 2012 at [14].
[75] Your second strike offending was for a charge of aggravated robbery. There are fewer details available to me today about it, though I do have the sentencing notes.57 Those notes describe the offending as involving you and a number of associates going to the victim’s house. It seems that the purpose of the visit was to get some money, perhaps some kind of taxing. Alcohol was consumed. The victim was then persuaded to take you and your associates down to an ATM machine. The purpose of that was for him to try and get some money for you. The sentencing Judge described events in the following way: “[t]he end result that he was given a bit of a beating and his vehicle was taken. I accept that it was not taken very far but by the time it was recovered, real damage had been done to the ignition barrel and the battery had been taken out.”58 You were sentenced to two years and three months’ imprisonment. That is the most serious sentence that has been imposed upon you to date, other than that being considered today.
[76] That offending is clearly more serious than your first strike, but again perhaps not what the public would consider “very serious” violent offending to which the three strikes regime is directed.
[77] There is then of course your third strike offending, which I am dealing with today. As noted, it is serious, but not the most serious of its kind. Your strike offences are not all of the same nature, and your first strike in particular does not provide a justification for you now facing a third strike sentence. When looked at collectively, your strike offending does not obviously fall within the concept of an offender who “continues” to commit “very serious offences”.
[78] What then of your other offending, because that is necessary to provide broader context and may paint a different picture. As noted, you have an extensive criminal history. A large number of your prior offences are driving offences. You are a recidivist offender, but I do not consider that that is accurately categorised as a recidivist offender of serious violent offences. That is also reflected in the fact that until now, your longest sentence is one of two years and three months’ imprisonment.
57 R v Lloyd DC Kaikohe CRI-2012-029-783, 29 April 2013.
58 R v Lloyd, above n 57, at [2].
Other sentences are more around one year’s imprisonment or less, many with leave granted to apply for home detention.
[79] I turn then to the difference in sentence of imprisonment between the “but for” sentence of five years and one month, and the maximum penalty of 14 years’ imprisonment. The difference is of course very large. The sentence under the third strikes regime is approaching triple what would otherwise be an appropriate sentence. As the Court of Appeal noted in Phillips, this factor should also take into account the actual difference in the years between the two sentences. In this case, there is almost a further 10 years’ imprisonment under the third strike sentence. On any view, this disparity is very significant, particularly given your age – it accounts to around one- third of your life to date.
[80] I have considered the position if I were to sentence you to 14 years’ imprisonment, but decline to make an order that that be served without parole. In that case, you would be eligible to apply for parole after serving around four years and seven months. That is only fractionally shorter than the end sentence in the “but for” scenario. Under that scenario, you are eligible for parole after serving around two years. While the disparity is not as significant when viewed through that lens (though it does almost double the time period before which you are eligible for parole), it is difficult if not impossible for the Court to make assessments of the likelihood of parole being granted,59 your access to suitable programmes to assist in that regard, and the fact remains you would remain subject to a further possible nine years and five months’ incarceration. I note that in a call called R v Morgan, a third strike sentencing decision from April this year, Mander J considered that a third strike sentence, which resulted in eligibility for parole being only seven months later than the equivalent position under the “but for” sentence, nevertheless breached s 9; describing the disparity between a “but for” sentence of six years and the maximum sentence of 14 years as “grossly disparate”.60 I consider that an accurate description in this case also.
59 Matara v R, above n 52, at [69].
60 R v Morgan [2022] NZHC 790 at [37].
[81] Importantly, I add to this your highly dysfunctional upbringing. I also take into account your prospects for rehabilitation, and the crushing effect a sentence of 14 years’ imprisonment could have, even with the ability to apply for parole.61
[82] I have accordingly concluded that to sentence you to 14 years’ imprisonment would breach s 9 of the Bill of Rights Act.
[83] I will therefore sentence you in accordance with normal sentencing principles, namely to the “but for” sentence I have already discussed. I must also disqualify you from driving for at least one year.62 Your counsel notes that you understand that disqualification for a period of three years or longer is inevitable. That is the case. I propose to disqualify you from driving for three and a half years and that is going to take effect from your release from custody.
[84] Mr Lloyd, would you now please stand. On each charge of using a firearm against a law enforcement officer, I sentence you to five years and one month’s imprisonment. Those sentences are to be served concurrently. I make an order that you are to serve a minimum period of imprisonment of two years. I will set out in a schedule to my written sentencing notes the individual sentences for all remaining charges, though those will be served concurrently, meaning that your overall sentence remains five years and one month’s imprisonment. I disqualify you from driving for a period of three and a half years, to take effect from your release from custody.
[85]Mr Lloyd, you may now stand down.
Fitzgerald J
61 For completeness, for the same reasons as finding that to sentence Mr Lloyd to 14 years’ imprisonment would have breached s 9 of the Bill of Rights Act, I would have found that it would have been manifestly unjust to sentence Mr Lloyd to 14 years’ imprisonment without parole, and accordingly would have declined to make such an order as to parole pursuant to s 86D(3).
62 Land Transport Act, s 32(4)(b).
SCHEDULE – REMAINING SENTENCES
July 2018 offending
1.Unlawful possession of a firearm – 6 months’ imprisonment (concurrent).
2.Unlawful possession of explosives – 3 months’ imprisonment (concurrent).
3.Possession of an offensive weapon – 3 months’ imprisonment (concurrent).
4.Driving dangerously – 1 month imprisonment (concurrent).
5.Possession of a methamphetamine utensil – convicted and discharged.
6.Possession of a Class C controlled drug (x2) – convicted and discharged.
7.Failing to stop – convicted and discharged.
8.Driving while disqualified (third or subsequent) – six months’ imprisonment (concurrent).
August 2018 offending
1.Assault with a weapon – 18 months’ imprisonment (concurrent).
2.Resisting arrest – convicted and discharged.
3.Possession of methamphetamine – 1 month imprisonment (concurrent).
6
16
0