Vae v Police

[2013] NZHC 2664

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-284 [2013] NZHC 2664

BETWEEN

DANIEL VAE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

7 October 2013

Appearances:

M Ryan for Appellant

L M Mills for Respondent

Judgment:

11 October 2013

JUDGMENT OF KEANE J

This judgment was delivered by  on 11 October 2013 at 3pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

Solicitors:
Crown Solicitor, Auckland

VAE v POLICE [2013] NZHC 2664 [11 October 2013]

[1] On 25 September 2013 Daniel Vae was, on his immediate plea in the District Court, Auckland, convicted of assaulting earlier that day a police officer in the execution of his duty. For two lesser offences, failing to comply with a direction that he not drive a motor vehicle and failing to give his name and address, he was convicted and discharged

[2] Mr Vae’s counsel, equally immediately, gave notice that Mr Vae intended to appeal that sentence and applied for bail. The sentencing Judge, Judge B Gibson, declined that application. The sentence he had imposed, he said, was  a  short sentence of imprisonment, it was the appropriate sentence, and a grant of bail was not in the interests of justice.

[3] On the following day Mr Vae appealed his sentence on the ground that it was manifestly excessive and the refusal of bail on the ground that this rendered his appeal right nugatory. He has since added a further ground: that the Judge should have recused himself because the Judge’s brother is a serving police officer. The most immediate issue, however, is whether Mr Vae’s appeal is moot. Mr Vae has served his sentence.

Contextual materials

[4] At 1 am on 25 September 2013, according to the undisputed summary of facts on which the Judge sentenced Mr Vae, Mr Vae’s car was stopped for a routine vehicle and licence check in New Windsor, Auckland. Mr Vae was driving while forbidden to do so. He gave a false name but was evidently recognised. He was warned of arrest but continued to provide the same details.

[5]   Mr Vae became uncooperative and aggressive.  He was arrested.  He resisted the two officers who attempted to handcuff him. Four officers were required. Once handcuffed he pulled away and attempted to head butt one of the officers.  He kicked the other in the left lower leg causing him to stumble over. It was that kick that constituted Mr Vae’s principal offence for sentence.

[6] Mr Vae was taken to the Auckland Central Police Station and continued to be threatening.   According to the summary Mr Vae said he did not care about any

prohibitions to which he was then subject. He justified resisting and assaulting the police by saying he felt both to be open because the police were weak.

[7]  The constable who suffered the assault said in his victim impact statement that he was assisting his colleague to arrest Mr Vae, ‘a well known offender’ and though the kick did not hurt or injure him, it did cause him to stumble, increasing the risk to himself and the other constable. He added:

While the effect that this incident has had on me is minimal, I know Vae is a recidivist offender and regularly responds to police with violence. I believe this is completely unacceptable and I would ask that he (be) treated with no tolerance with regards to his offending.

[8]  Mr Vae’s history of previous offending extends to seven pages.   It records that he has been imprisoned for significant offences involving violence and weapons; the last such sentence was imposed in May 2011. It records that he has resisted the police on numerous occasions since 1995; the last such instance was in 2005 and was aggravated by the use of a firearm. It records recent breaches of Court orders, including a number of breaches of release conditions; the last the subject of sentence in late 2012.

[9] Despite that Mr Vae’s report gave him credit for his claim to have quit his gang involvement and reduced his alcohol and drug intake. Also for his claim that he was in a stable relationship and had been in work, six days a week, for two months. Also for his proposal to devote a day a week to his outstanding 98 hours community work and to obtaining his licence.

[10] On these bases Mr Vae’s stand down report recommended that sentencing be adjourned for six months; a recommendation the Judge evidently rejected.

Decision under appeal

[11] The Judge first, in principle, offset against Mr Vae’s previous convictions, which as he said included aggravating assaults, Mr Vae’s plea at the first reasonable opportunity for which he was entitled to full credit, and then concluded that only a sentence of imprisonment would suffice to denounce and deter.

[12] The Judge took a three week starting point, which he uplifted by one week for Mr Vae’s previous convictions, then reduced by one week, allowing him a full credit for his plea. Despite s 16 of the Sentencing Act 2002, to which the Judge then referred, he concluded that, ‘having regard to his extensive history and the risk people like the defendant pose to constables going about their lawful business, only a sentence of imprisonment would serve’.

[13]     The Judge declined Mr Vae’s application for bail, saying this:1

The sentence is a short sentence of imprisonment. In my view, on the facts, it was an appropriate sentence and there was no reason advanced in relation to personal circumstances that would persuade me to grant bail.

Recusal point

[14] Mr Vae’s most general ground of appeal is that the Judge ought to have recused himself because he has a brother who is a serving police officer; and it is unsustainable.

[15] Mr Vae’s counsel did not invite the Judge to recuse himself.  It was not for the Judge to anticipate that objection. It is now too late, I consider, for Mr Vae to take this point. Secondly, this ground has no sensible limit and is irreconcilable with the recusal principle, which is highly specific. This ground could apply whenever a police officer is a complainant or even a witness, cutting away the Judge’s criminal jurisdiction.  Thirdly, there is no suggestion that the Judge’s brother was involved in

this case in any sense; and a fair minded lay observer is unlikely to have any reasonable concern that the Judge might have been less than fair.2

[16] Finally, and even though it is the appearance of bias that counts, there is no evidence of any actual bias. The Judge did refer to what the assaulted constable said about Mr Vae’s reputation for violence and agreed that it was unacceptable. But, as the Judge then said, Mr Vae’s criminal convictions speak for themselves, as they plainly do.

1       Police v Vae DC Auckland CRI-2013-004-010834, 25 September 2013.

2       Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 1) [2010] 1 NZLR 35 (SC) at [3] – [5].

Mootness point

[17] The second issue, which goes to both grounds of appeal, is one I raised with counsel without the benefit of authority; and that is whether either or both of Mr Vae’s appeal grounds are moot.

[18] On 26 September 2013 Mr Vae’s notice of appeal was filed incorrectly in the District Court. It should have been filed in this Court.3 It was not received by this Court until 30 September 2013; and then, when three dates were offered, Mr Vae’s counsel could not accept the first, 1 October 2013, and by the time he responded the second, 4 October 2013, had ceased to be available. I heard Mr Vae’s appeal on the third date offered, 7 October 2013.

[19] The difficulty I then found myself facing, as I said to counsel, was that Mr Vae had been released halfway through his three week term as the law requires. He was no longer detained and was deemed to have served his sentence.

Sentence appeal

[20] That fact does not deprive me of jurisdiction to hear Mr Vae’s sentence appeal. He appealed as of right.4 He brought his appeal within time.5 This Court then became obliged to determine his appeal.6 In contrast to a prosecutor’s appeal against sentence, not heard before a sentence is completed, his appeal is not to be deemed abandoned.7

[21] The issue then becomes whether, despite that, this point is moot and, as the Supreme Court said in Gordon-Smith v R,8 while ‘mootness is not a matter that deprives a Court of jurisdiction to hear an appeal’, it still matters:

The traditional position taken in New Zealand has been that the Courts will not hear an appeal ‘where the substratum of the ... .litigation between the

3       Criminal Proceedings Act 2011, s 248.

4       Section 244.

5       Section 248(2).

6       Section 250.

7       Section 249.

8       Gordon-Smith v R [2008] NZSC 56; Signer v R [2011] NZSC 109; Orlov v ANZA Distributing (NZ) Ltd (in liq) [2011] NZSC 28.

parties has gone and there is no matter remaining in actual controversy and requiring decision.

[22] Mr Vae’s sentence appeal is not moot. He cannot now contend for  a community based sentence, as he would have had he been granted bail. But he can contend for a lesser term and that, as a measure of his offence, has continuing significance.

Bail appeal

[23] It is inherent in an appeal against a refusal of bail, advanced under s 41 of the Bail Act 2000, by contrast, that the order for detention still be in force at the date of the hearing of the appeal. The appeal can only concern whether as at that date there is, and there has been, ‘just cause’ for the appellant’s ‘continued detention’.9

[24] I lack, therefore, I consider, jurisdiction to consider this ground and, unsurprisingly, Mr Vae does not and cannot identify any present practical point to it. All that he seeks is a declaration that the decision to decline him bail was wrong. The point is also, therefore, moot.

[25] To be complete, however, I should add that while Mr Vae was bailable at the discretion of the Judge,10 he had to satisfy the Judge to the balance of probabilities that a grant was in the interests of justice;11 and in assessing that issue the Judge was entitled, but not obliged, to take into account under s 14(3):

(a)the apparent strength of the grounds of appeal:

(b)the length of the sentence that has been imposed on the appellant:

(c)the likely length of time that will pass before the appeal is heard:

(d)the  personal  circumstances  of  the  appellant  and  the  appellant’s immediate family:

(e)any other consideration the Court considers relevant.

9       Bail Act 2000, s 7(5).

10      Section 14.

11      Section 14(1), (2).

[26] The Judge had regard to the first of those factors.  He did not have regard to the other four. Given the length of the sentence imposed, the second and third grounds were plainly relevant.12 Desirably, the Judge should have considered both. But how far that would have assisted Mr Vae to discharge his onus is another matter.

Sentence appeal principles

[27] Section 250 of the Criminal Procedure Act 2011 requires me to determine Mr Vae’s sentence appeal in accord with that section.  It requires me to allow his appeal if satisfied that:13

(a)for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)a different sentence should be imposed.

Otherwise I am obliged to dismiss his appeal.14

[28] According to Adams on Criminal Law,15 s 250 codifies the error principle that evolved under s 121 of the Summary Proceedings Act 1957. This Court may only intervene if the sentencing Court erred. I agree with that analysis.

Sentence within discretion

[29] Mr Vae’s assault on the constable in the execution of his duty was minor, as the Judge accepted. But Mr Vae was then resisting arrest very vigorously. He had convictions for similar offending extending back to 1995. Those aggravating factors made his offence more serious.

[30] A full pre-sentence report might have canvassed Mr Vae’s most recent circumstances more fully. But the stand down report put at their highest Mr Vae’s claims to a community based sentence. And any report would have had to stand scrutiny, set against Mr Vae’s very recent breaches of Court orders and his community work outstanding.

12      R v Kerr CA167/04, 16 August 2004.

13      Criminal Procedure Act 2011, s 250(2).

14      Section 250(3).

15      Bruce Robertson Adams on Criminal Law (online looseleaf ed, Brookers) at CPA 250.01.

[31] The Judge was entitled, therefore, as he did, I consider, to imprison Mr Vae, relying only on the stand down report, and the term he imposed was not by any means manifestly excessive.16

Conclusion

[32] Mr Vae’s appeal, as it relates to the refusal of a grant of bail, is, I find, both spent and moot. His right of appeal against sentence, by contrast, is not spent and his appeal is not moot. The Judge, I find also, was not obliged to recuse himself and the sentence he imposed was open in principle and not manifestly excessive. Mr Vae’s appeal is dismissed.

P.J. Keane J

16      R v Taurere HC Whangarei CRI-2011-488-000030, 7 July 2011.