Young v Police HC Auckland CRI-2011-404-318
[2011] NZHC 1832
•21 November 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-318
BETWEEN COLIN LANCE YOUNG Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 21 November 2011
Counsel: Appellant (Mr Young) in person
K Patterson for Respondent
Judgment: 21 November 2011
JUDGMENT OF BREWER J
SOLICITORS
Meredith Connell (Auckland) for Respondent
(Copy to Appellant in person)
YOUNG V POLICE HC AK CRI-2011-404-318 21 November 2011
[1] Mr Young appeals against the sentence of Judge LH Moore handed down against him in the District Court at North Shore on 19 July 2011.
[2] The District Court Judge had to sentence the appellant on charges arising out of two incidents. The first incident occurred on 24 December 2010 and, in the end, resulted in one charge of male assaults female and one charge of resisting a constable in the execution of his duty. The second incident occurred on 20 January 2011. This resulted in one charge of driving with excess breath alcohol (second or subsequent offence) and one charge of attempting to pervert the course of justice.
[3] For the first incident, the appellant was sentenced to two months’ imprisonment. For the second incident, he was sentenced to two months’ imprisonment on the drink/driving charge and eight months’ imprisonment on the charge of attempting to pervert the course of justice. All of these sentences being cumulative and making a total sentence of 12 months’ imprisonment.
The facts
The first incident
[4] The summary of facts to which the appellant pleaded guilty records that the appellant and the victim had been in an on/off volatile relationship for many years. On the day in question the appellant and the victim were at the victim’s address. The appellant became extremely intoxicated. During an altercation which then developed, the appellant intentionally struck the victim in her face breaking her false teeth and cutting the inside of her bottom lip. He also grabbed the victim around the throat with his hands and applied pressure causing bruising to the neck.
[5] When the Police arrived the appellant physically resisted them.
[6] The summary of facts to which the appellant pleaded guilty records that he was the driver of a motor vehicle stopped by Police at about 11:16 pm on Thursday
20 January 2011. The vehicle had no headlights on at the time. The evidential breath test found the appellant’s breath to contain 921 micrograms of alcohol per litre of breath. The appellant’s explanation was that he was the most sober to drive, had had only five beers, and had decided to drive home.
[7] The appellant falsely identified himself as his brother, was charged under that name, and appeared in the District Court at Manukau on 3 February 2011 and pleaded guilty to the charge of driving with excess breath alcohol. As a result, his brother was recorded as being convicted and disqualified from driving for a period of six months, was fined $750 and had court costs imposed.
[8] The Police discovered the imposture and the appellant was located and arrested. He gave no explanation for his actions but pleaded guilty to the charge of attempting to pervert the course of justice.
[9] Before me today, Mr Young has reiterated the explanation which is in his written submissions. That is that his decision to give his brother’s details was not because he wished to get a lesser sentence but because the Police had been lying to him continually and he was fed up with that and he decided to play the Police at their own game.
The pre-sentence report
[10] The District Court Judge had the assistance of a full pre-sentence report. It is dated 12 July 2011.
[11] Mr Young is recorded as a 52 year old man, at that time residing alone in a motel complex. He was in regular contact with his victim from the first incident (and indeed she was in Court for his sentencing in the District Court and apparently
was a vocal supporter). The appellant was at that time employed by Labour Hire and said that he usually worked about two days a week.
[12] As regards the first incident, the appellant told the probation officer that his partner had invited her friends over for Christmas drinks. He was not fond of her friends, wanted them to leave and argued with the victim about this. He told the probation officer “I couldn’t take any more [of the yelling] so I hit her”. He expressed remorse for his actions but blamed the victim and her friends for causing him to act in the way he did.
[13] Regarding the second incident, the appellant said that he agreed with the Police summary of facts. He said that he had been “drowning his sorrows” with his brother. He expressed no remorse and gave no further explanation at that time.
[14] The probation officer recorded:[1]
The main factors behind Mr Young’s offending are alcohol abuse and a propensity for violence and he agreed with this assessment. Also contributing to the offending is the volatile nature of his relationship with the victim and he agreed with this. However, he denied he felt entitled to hit his partner. He justified his actions because he said he could not cope with her screaming. It was a concern that throughout the interview Mr Young was both defensive and aggressive.
[1] Pre-sentence report dated 12 July 2011, p 3.
[15] The appellant denied that he had an alcohol problem and said he would attend relationship counselling only if directed. He did advise that he was half-way through the Rodney Stopping Violence programme and it was later confirmed that he had completed 12 of 19 sessions.
[16] The probation officer assessed the appellant as being at high risk of further violent offending within his relationship with the victim. The main factors affecting that assessment are the appellant’s denial of an alcohol problem and his denial of responsibility for the offending.
[17] The probation officer’s recommendation was that Mr Young be sentenced to a period of home detention with special conditions.
Criminal history
[18] The appellant has relevant criminal convictions as follows:
2004: common assault (Crimes Act 1961), for which the appellant was
sentenced to three months’ imprisonment and denied leave to apply for home detention;
1999: driving with excess breath alcohol; 1997: driving with excess breath alcohol;
1994: attempted rape, indecent assault (x4), unlawful sexual connection, for
which the appellant was sentenced to four years six months’ imprisonment.
The appellant’s case
[19] Mr Young represents himself. He raises four broad complaints in his detailed handwritten submissions which he has spoken to before me today. They relate to:
(a) His treatment by the Police when he was arrested and subsequently.
Mr Young’s feelings about his treatment by the Police are clearly deeply felt. His submissions are that he was subjected to a gratuitous and completely unnecessary series of beatings at the hands of the Police. He left the dock to show me a very pronounced swelling on his shin which he tells me is a consequence of how he was treated by the Police. Mr Young also feels deeply that the Police were dishonest in their prosecution of him, making allegations and bringing charges that were later withdrawn because they could not be substantiated. However, Mr Young needs to understand that when I approach his sentencing review today I have to put those matters to one side because I am dealing only with the offending to which he has pleaded guilty. The allegations that he has made before me about his treatment by the Police are serious and must be dealt with. Mr Young has told
me that his previous lawyer, he understands, has made a complaint to the Independent Police Conduct Authority. However, Mr Young has told me that he has not heard anything from the Authority. On this point Mr Young should be following up directly with the Independent Police Conduct Authority to confirm that it has received his complaint and to obtain a timetable for how it is to be dealt with.
(b) Errors in the summary of facts and the pre-sentence report.
(c) The conduct at sentencing of the District Court Judge including assumptions he made or conclusions he drew erroneously because of the errors identified by Mr Young.
(d) The overall sentence is manifestly excessive.
The Crown’s submissions
[20] At the outset, the Crown points out that the appellant was sentenced twice for the one incident of drink/driving which occurred on 20 January 2011. Accordingly, the Crown submits that the information CRN 11092003041 and the conviction entered thereon should be quashed. That is the charge of driving with excess breath alcohol (second or subsequent offence) upon which Mr Young was sentenced by Judge Moore.
[21] Notwithstanding this, the Crown’s broad submission is that the end sentence of 12 months’ imprisonment remains an appropriate sentence in all the circumstances.
[22] The Crown submits that the most serious offence, and the one which must be treated as the lead offence for sentencing purposes, is the charge of attempting to pervert the course of justice. I agree.
[23] The Crown submits that on the review of cases prepared and presented by it, the District Court Judge was justified in adopting a starting point of 18 months’ imprisonment.
[24] The Crown also supports the sentences on the other charges and submits that home detention was not appropriate in the circumstances, particularly in the circumstance that any order prohibiting contact with the victim would not be effective.
Court’s approach on appeal
[25] An appeal against sentence from the District Court to this Court proceeds by way of rehearing.[2] I have explained this to Mr Young. That is to say, I have to look at the material before me and decide for myself whether the District Court Judge’s sentence was clearly excessive or not. In doing so, I can be guided by the District Court Judge’s reasoning but I need not give it particular deference. It is the end point of the sentence which I must focus upon (in this case 12 months’ imprisonment). If I decide that the end sentence is within the range available to the District Court Judge then I should not disturb it, even though I might disagree with
the way in which he reached it.
[2] Summary Proceedings Act 1957, s 121; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[26] In this case it is particularly important for me to look carefully at the underlying fact situation. This is because Mr Young takes issue with the procedures adopted by the District Court Judge and his own counsel at the sentencing.
[27] The lead charge must be the charge of attempting to pervert the course of justice. Having considered the cases put forward by the Crown,[3] I have decided that an appropriate starting point is 12 months’ imprisonment and not the 18 months’
imprisonment adopted by the District Court Judge.
[3] Tie v Police HC Auckland CRI-2009-404-41, 19 March 2009, Wylie J; Ashton v The Queen HC Christchurch A56/03, 22 May 2003, John Hansen J; Buchanan v Police HC Rotorua CRI-2008-470-26, 22 August 2008, Gendall J; Dean v Police HC Napier AP58/2001, 13 December 2001, Gendall J; Wellis v Police HC Auckland CRI-2005-404-437, 13 July 2006, Rodney Hansen J; Morrison v Police CA357/96, 3 October 1996; Police v Curran HC Hamilton S35/90, 31 October 1990, Fisher J.
[28] The offence was committed while the appellant was on bail for the charges arising from the first incident and for that I would impose an uplift of one month, taking the starting point to 13 months’ imprisonment.
[29] I must also take into account that the appellant benefited materially from his deception, no matter his reason for the deception, because he was sentenced on the charge of driving with excess breath alcohol on the basis that he had no previous convictions of that sort. That resulted in a fine of $750, disqualification from driving for a period of six months, and an order to pay court costs. Had he been charged under his own name the sentence would more likely have been a short term of imprisonment, as indeed was imposed by the District Court Judge. For that factor I increase the starting point by two months’ imprisonment, to make a total at this point of 15 months’ imprisonment. I make an order quashing the sentences imposed by the District Court Judge under the information sworn on 27 January 2011 under the name of the brother (CRN 11092001512). The result is that on that information only the conviction will stand.
[30] So far as aggravating features personal to the appellant are concerned, I note the appellant’s previous criminal history but do not consider it to be relevant to the lead charge.
[31] The appellant is entitled to a 25% reduction for his plea of guilty and this reduces the 15 months to, in the round, 11 months’ imprisonment.
[32] I now come to the first incident. That is completely separate from the incident which resulted in the charge of attempting to pervert the course of justice and must be dealt with on a cumulative basis. In my view, the District Court Judge was far too low in assessing his starting point. In my view the violence warranted a starting point of six months’ imprisonment. There needs to be an uplift to take into account Mr Young’s previous history of violent offending and in the circumstances I add a further two months’ imprisonment. That results in eight months’ imprisonment. Mr Young is, however, entitled also to the 25% reduction. That is two months and reduces the sentence on the violence to six months’ imprisonment.
The concurrent sentence imposed by the District Court Judge of seven days’
imprisonment for resisting the Police is reasonable and I adopt it.
Totality
[33] I now need to stand back and consider whether the overall sentence of
17 months’ imprisonment is justified looking at the totality of Mr Young’s offending in the round. I have decided that 17 months’ imprisonment would be too severe. I would reduce it by three months to 14 months’ imprisonment. On this basis, I have come to the conclusion that the total sentence of 12 months’ imprisonment imposed by the District Court Judge was within the range available to him and was not clearly excessive; indeed it was, Mr Young, lenient and bordering on the clearly inadequate. But I will not disturb the sentence on appeal.
[34] Accordingly, on this appeal I quash, firstly, the conviction for the drink/driving charge.[4] I quash the sentences imposed by the District Court Judge on the remaining charges and I substitute an end point for the lead offence of six months’ imprisonment. On the charge of male assaults female I impose an end sentence of six months’ imprisonment, with a concurrent sentence of seven days’ imprisonment on the charge of resisting the Police. That results in a total sentence of
[4] CRN 11092003041.
12 months’ imprisonment. Stand down.
Brewer J
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