Fugle v R [2022] NZCA 124 (11 April 2022)

Last Updated: 28 April 2022

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA738/2021 [2022] NZCA 124

	BETWEEN	LESLIE WILLIAM FUGLE Appellant
	AND	THE QUEEN Respondent

Hearing:	29 March 2022
Court:	Brown, Lang and Mallon JJ
Counsel:	P L Murray for Appellant M G Wilkinson and T Bagnall for Respondent
Judgment:	11 April 2022 at 11.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

• [1] Mr Fugle was charged with intentional damage^[1] arising from an incident where the 20 tonne digger he was operating damaged the vehicle of Council officers undertaking a subdivision compliance inspection. Mr Fugle was found guilty by a jury and was sentenced by Judge Edwards in the District Court at Palmerston North on 17 December 2021 to two months’ community detention, 150 hours of community work and to pay $5,000 by way of emotional harm reparation.^[2] He appeals his sentence on the grounds that it was inappropriate or manifestly excessive.

The offending

• [2] The relevant circumstances were described in the sentencing notes as follows:

[2] The charge arose from an incident on 28 November 2020 when three officers of Horizons Regional Council travelled to a subdivision where you are involved in development work. They were there to carry out a compliance inspection. When they arrived, you were working on a small red digger some distance away from where they parked. They introduced themselves and advised you they were undertaking a compliance inspection. You acknowledged their presence but were somewhat dismissive towards them and then you continued working on that digger. Two of the officers moved further off into the development to carry out a ground inspection. The man that remained near the two vehicles was operating a drone from the back of one of them.

[3] You then drove up to the vehicles in a yellow 20 tonne digger which had been parked some distance away when they arrived with the aim of using it to spread metal which had been unloaded at the entrance to a cul-de-sac opposite where the vehicles were parked. You asked the officer who was operating the drone to move the vehicles. He told you he could not because he had to wait until the drone landed and he said he would ring the officer who was in charge of the compliance inspection.

[4] You became both agitated and abusive to that officer and to the other two when they returned, insisting that they move the vehicles and insisting that you carry on that work at that particular time, rather than doing something else until they finished with the drone and left.

[5] The evidence at trial was that at one stage [you] were banging the bucket of the digger on the ground in an intimidating manner and at another point you swung the digger bucket over the vehicles and where the officers were standing. This action could be seen in footage one of the officers took of the incident.

[6] A charge of intentional damage can be prosecuted on the basis it was intentional or reckless. By the conclusion of the trial, the Crown case was based on recklessness, but in the context of your overall behaviour, recklessness at the higher end. You are a skilled and experienced digger operator. The Crown case was that what happened when you hit one of the vehicles with the digger was not a momentary lapse of attention as you claimed, but rather, you were angry with the situation and with the compliance officers’ presence and were reckless as to the consequences of continuing to work in such close proximity to the vehicles.

District Court sentencing

• [3] The Judge, who had presided at the trial, commenced by observing that although in her view Mr Fugle’s acts were intentional, the Crown case had ultimately been put to the jury on the basis of recklessness. Hence the sentencing proceeded on that basis as the jury had not been asked to distinguish between the two in their verdict.^[3]
• [4] The Judge proceeded to refer to a sentence indication given by another Judge and Mr Fugle’s earlier offer of reparation.^[4] She addressed the submission that an alternative to a sentence of community detention should be considered, referring to two authorities^[5] cited for Mr Fugle where the sentences were imposed comprising a combination of community work and reparation in instances involving deliberate damage.^[6]
• [5] However the Judge considered that Mr Fugle’s behaviour in the incident was a factor which aggravated the offending, commenting that he could have waited for the inspection to finish before undertaking the particular piece of earthmoving in the area where the Council vehicles were parked and which resulted in the damage.^[7]
• [6] In response to the submission that a sentence of community detention would impede Mr Fugle’s ability to travel overseas for business reasons, which was advanced as the main reason against imposing such a sentence, the Judge indicated a willingness to consider a combination of community detention and community work at adjusted lengths to accommodate that course.^[8] Ultimately the Judge settled on a combination of sentences.^[9]

Nature of the appeal

• [7] The sentence appeal is brought under s 244 of the Criminal Procedure Act 2011 (CPA). Section 250(2) of the CPA provides that such an appeal must only be allowed if the Court is satisfied that for any reason there was an error in the sentence imposed and a different sentence should have been imposed. The Court must dismiss the appeal in any other case.^[10] Section 250(2) makes no express reference to “manifestly excessive”, which is a ground of appeal advanced in this case. However, in Tutakangahau v R this Court held that under that section there was to be no change from the approach taken under earlier statutes concerning sentence appeals including s 121(3)(b) of the Summary Proceedings Act 1957 which referred to “clearly excessive or inadequate or inappropriate”.^[11]
• [8] Mr Fugle’s case on appeal was advanced on three bases:

(a) errors in the judgment: omission to identify a starting point; the treatment of reparation; and inadequate comparison with relevant cases;

(b) Mr Fugle’s level of culpability; and

(c) Mr Fugle’s personal circumstances.

Discussion

• [9] Mr Murray, counsel for Mr Fugle, first sought to identify a number of errors in the sentencing notes. He drew attention to the fact that the Judge neither identified a starting point nor quantified a reduction in sentence for the offer of reparation, which he described as a departure from the methodology in R v Taueki^[12] as modified in Moses v R.^[13] He acknowledged however that the focus on appeal is the end result and that, while the assessment of that result is aided when the sentencing process is clearly set out,^[14] the failure to identify the starting point or quantify a personal mitigating factor does not automatically result in an error. Concerning the latter point, we note that it is clear from the sentencing notes that the Judge expressly took into account Mr Fugle’s offer of reparation in determining the length of the combination of sentences.^[15]
• [10] Mr Murray was also critical of the Judge’s reference to the sentencing indication given by a different Judge before trial. He contended that the indication should not have informed the sentence, given that it proceeded on the different factual basis that the damage was caused intentionally. However we are satisfied that there was no error in this respect. The Judge primarily referred to the sentence indication in the context of noting the fact of the reparation offer and the delay in its payment.^[16] The Judge went on to state expressly that she would be reconsidering the appropriate length of community detention in the circumstances of the conviction, given that the sentence indication of between four and six months’ community detention was on the basis of intentional or deliberate conduct.^[17]
• [11] Mr Murray then submitted that Mr Fugle’s offending was less serious than in a number of comparative cases. In addition to the two cases referred to at sentencing, namely Lynch v Police and Watters v Police,^[18] he drew attention to a further comparator in Young v Police.^[19] Mr Murray noted that community detention had been the outcome in several cases involving offending more serious than that of the appellant, namely Morgan v Police, Riki v Police and Johns v Police.^[20] It was submitted, therefore, that the Court had failed to comply with the sentencing principle in s 8(e) of the Sentencing Act 2002.^[21] Mr Murray contended that the offending had occurred in the heat of the moment, resulting in a single collision with the Council vehicle which was merely a glancing impact, although still causing considerable damage. In those circumstances Mr Fugle’s culpability warranted solely a sentence of community work, not one of community detention.
• [12] We recognise that the authorities to which Mr Murray referred all involved intentional and reasonably extensive damage.^[22] However Ms Wilkinson, counsel for the Crown, correctly observed that it is necessary to consider a defendant’s overall behaviour, including the risk of safety to others, rather than simply focusing on the value of the property damaged and the fact that the Crown case was put to the jury on the basis of recklessness.^[23] She also drew attention to Mitchell v R and Finlinson v Police as illustrative of the point that, where there is a risk of safety to people and property was damaged with intention to cause emotional distress, sentencing starting points and end points of imprisonment are available.^[24] While the present case did not involve such intention, nevertheless there was a substantial risk to the officers and Council property.
• [13] We agree with Ms Wilkinson’s submission that Mr Fugle’s offending was not merely momentary, and instead involved an escalating situation during which there were a number of opportunities available to take an alternative course of action. We accept that the evidence highlighted a real risk to the safety of the Council officers, who were executing statutory functions, while Mr Fugle was working in the area in the large digger. In particular we note the fact that Mr Fugle swung the bucket of the digger over the officers’ heads and that one of them had to step out of the way and felt unsafe. That state of affairs was reflected in the Judge’s assessment that this was reckless offending at the higher end.^[25]
• [14] Finally Mr Murray reiterated the point that Mr Fugle deposed as to his involvement in a large development that requires him to be able to travel freely, both domestically and internationally, with the consequence that the restriction of community detention even for two months was inappropriate. However we consider that a period of community detention, albeit of short duration, was appropriate to reflect both deterrence and the denunciation of Mr Fugle’s conduct. The degree of inconvenience for Mr Fugle’s work travel requirements was accommodated to some degree by the structure of the sentence which the Judge imposed.
• [15] In our view the nature and duration of the sentence clearly reflected the high level of recklessness which Mr Fugle’s conduct involved. We do not consider there was any material error in the Judge’s reasoning or that the sentence could be said to be manifestly excessive in the circumstances.

Result

• [16] The appeal is dismissed.

Solicitors:
Crown Solicitor, Palmerston North for Respondent

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^[1] Crimes Act 1961, s 269(2)(a), maximum term of seven years’ imprisonment.

^[2] R v Fugle [2021] NZDC 25140.

^[3] R v Fugle, above n 2, at [7].

^[4] At [9]–[10].

^[5] Lynch v Police HC Wellington CRI-2008-485-82, 1 September 2008; and Watters v Police HC Invercargill CRI-2007-425-43, 5 February 2008.

^[6] R v Fugle, above n 2, at [11].

^[7] At [13]–[14].

^[8] At [15].

^[9] At [17].

^[10] Criminal Procedure Act 2011, s 250(3).

^[11] Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26], [33] and [35].

^[12] R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.

^[13] Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

^[14] Ekeroma v R [2021] NZCA 250 at [16].

^[15] R v Fugle, above n 2, at [14]–[15].

^[16] At [8]–[9].

^[17] At [10].

^[18] Lynch v Police, above n 5; and Watters v Police, above n 5.

^[19] Young v Police HC Auckland CRI-2005-404-222, 21 December 2005.

^[20] Morgan v Police [2012] NZHC 938; Riki v Police [2013] NZHC 282; and Johns v Police [2017] NZHC 1423.

^[21] The Court must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances.

^[22] Morgan v Police, above n 20, concerned a “tagging spree”. In Johns v Police, above n 20, the damage to vehicles on more than 100 occasions was described as vigilante offending.

^[23] See Johns v Police, above n 20, at [8] and [22].

^[24] Mitchell v R [2013] NZCA 583; and Finlinson v Police [2016] NZHC 224.

^[25] R v Fugle, above n 2, at [6] and [16].