Borell v Police [2014] NZHC 2422 (3 October 2014)

Last Updated: 23 October 2014

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-470-000024 [2014] NZHC 2422

COLIN WILLIAM BORELL Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	30 September 2014
Appearances:	Ned Burke for the Appellant Richard Jenson for the Respondent
Judgment:	3 October 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by on 3 October 2014 at 11:15am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

BORELL v NEW ZEALAND POLICE [2014] NZHC 2422 [3 October 2014]

[1] Mr Borell, aged 27, was charged with dangerous driving on 26 February

2014.

[2] On 2 April 2014, in relation to an earlier episode of dangerous driving, he was disqualified from driving for six months. He has two previous convictions for driving while disqualified in 2005 and 2007.

[3] Three weeks later, in the early hours of the morning, he was seen driving by a Police patrol which pulled in behind him and activated its red and blue flashing flights. Instead of stopping, Mr Borell accelerated away reaching speeds of 110 kph. For some minutes he continued to drive at speed, not slowing down for speed bumps, going through roundabouts and cutting corners. He only stopped when another patrol car blocked his way. This conduct resulted in him being charged with driving while disqualified (third or subsequent charge), dangerous driving and failing to stop.

[4] The following month Mr Borell was at a Tauranga bar when a fight erupted outside. Mr Borell moved behind one of those involved and struck him on the side of the head from behind. As a result of this “king hit” the victim fell to the ground unconscious and was taken to Tauranga hospital for treatment. The victim awoke with no memory of what happened. He received severe bruising to the back of his head and a cut to the side of his face.

[5] Mr Borell was charged with common assault under the Crimes Act 1961.

[6] Mr Borell has three previous convictions for fighting in a public place (2006,

2007 and 2010).

[7] He appeared in the District Court at Tauranga and following pleas of guilty was convicted and sentenced on the following charges:

(a) dangerous driving (26 February 2014): 12 months’ home detention,

200 hours’ community work and six months’ disqualification;

(b) dangerous driving (27 April 2014): 12 months’ home detention, 200

hours’ community work and 12 months’ disqualification (concurrent);

(c) driving while disqualified: 12 months’ home detention, 200 hours’

community work and 12 months’ disqualification (concurrent);

(d) failing to stop: three months’ disqualification (cumulative); and

(e) assault: 12 months’ home detention, 200 hours community work

(concurrent).

District Court decision

[8] The sentencing Judge noted Mr Borell’s criminal history was not insignificant although he had never served a term of imprisonment. His convictions were for a variety of offences, notably driving, class C drug offending and low level violence charges.

[9] The Judge registered his concern that the appellant had a history of failing to comply with Court orders, commenting “you will not do what you are told when you are told”. However, because the assault conviction was his first for such an offence, the Judge indicated he was prepared to be lenient and imposed home detention rather than imprisonment, noting that the level of violence involved could have warranted

12 months’ imprisonment which is the maximum penalty.

[10] In relation to the driving while disqualified conviction his Honour commented on Mr Borell’s past conduct for similar offending. For the dangerous driving charge he noted that Mr Borell posed a danger to the public.

[11] His Honour did not expressly turn his mind to a starting point or adopt the conventional approach to the assessment of the aggravating and mitigating factors of the offending and the offender before allowing credit for the guilty plea. Instead he approached the sentencing on a totality basis reaching an end sentence in the region of two years’ imprisonment which he concluded could be dealt with by an end sentence of 12 months’ home detention, community work and disqualification.

[12] He thus sentenced Mr Borell to 12 months’ home detention coupled with a sentence of 200 hours community work on each of the charges. He explained that six months’ home detention was appropriate for the assault. For the driving charges, he was sentenced to six months’ home detention with 200 hours of community work. He disqualified Mr Borell from driving for two years.

Appeal

[13] The appellant appeals on the basis that the sentence is manifestly excessive.

[14] Section 250 of the Criminal Procedure Act 2011, states that the Court must allow the appeal if satisfied that:

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

(b) a different sentence should be imposed.

[15] In any other case, the Court must dismiss the appeal.¹ This section confirms the approach taken by the courts under the Summary Proceedings Act.

[16] Section 250 confirms the approach taken by the courts under the former Summary Proceedings Act 1957. This approach to set out in Yorston v Police where the Court said: ²

(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of

_{additional material submitted to the appeal Court.}

¹ _{Criminal Procedure Act 2011, s 250(3).}

² Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]–[15].

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[17] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

Appellant’s submissions

[18] Mr Burke, for the appellant, submits that it is difficult to determine how the end sentence was arrived at given that no starting point was identified nor were the aggravating or mitigating factors, including the guilty plea, analysed or identified.

[19] Mr Burke submits the sentence is manifestly excessive. He notes that the maximum sentence which could have been imposed on the assault charge was 12 months’ imprisonment which is the equivalent of six months’ home detention. In other words, he submits that the Judge imposed what is effectively the maximum penalty. He supported this submission by reference to the Judge’s comment recorded in the notes, namely:

If you had any prior convictions ... I would be locking you up anyway today

for a full 12 months, bar nothing.

[20] This, Mr Burke submits, indicates that the Judge intended to give some credit

for Mr Borell’s lack of previous convictions for violence.

[21] Mr Burke submits that the Judge was wrong when he found that the assault was “about as bad as it gets”, claiming that although it was serious it was not at the utmost upper end of offending of that type.

[22] Mr Burke also submits that the driving offences did not warrant a sentence of six months’ home detention. He submits that the dangerous driving consisted of driving at a speed to a maximum of 110kph and occurred when there was no other traffic, the road was dry and the risk to the public minimal. He submits that Mr Borell only attempted to evade the Police because he was a disqualified driver. He submits that this type of offending would not normally attract a custodial sentence but rather, a lengthy disqualification coupled with community work.

[23] Finally, Mr Burke submits that Mr Borell was not given any credit for pleading guilty at an early stage in the proceedings.

Respondent’s submissions

[24] In response, Mr Jenson accepts that there was no explicit reference to the general principles applicable to the sentencing process. Instead the approach was based on the totality principle but, nonetheless, was appropriate and within the available range having regard to the appropriate sentences for each set of offending. He submits that despite the departure from the ordinary three stage process for sentencing the final sentence imposed was proper and should not be disturbed on appeal.

[25] In relation to the assault, Mr Jenson submits that the Judge rightly characterised the assault as he did given it was a cowardly “king hit” directed to the back of the victim’s head. He submits that offending of this type requires deterrence and denunciation given its potential for drastic consequences and justifies the

imposition of, or near to, the maximum penalty for the offence of an assault.³

[26] He referred to a decision of this Court in Ronaki v Police⁴ where Williams J upheld a sentence of 12 months’ imprisonment for an assault involving a “king hit” despite a guilty plea. He properly accepted that decision differed somewhat from the present in that it formed part of the cumulative term of imprisonment and the charge of assault had been reduced from one of assault with intent to injure in the course of plea negotiations.

[27] However, Mr Jenson submits that if the assault in the present case was approached on a standalone basis a starting point in the vicinity of 12 months’ imprisonment would have been justified.

[28] In relation to the driving offences Mr Jenson relies on the authorities of

_{Petersen v Police}⁵ _{and Te Puia v Police.}⁶ _{This Court has noted that the normal}

³ _{Sentencing Act 2002, ss 8(c) and (d).}

⁴ _{Ronaki v Police HC Rotorua CRI-2004-470-38, [39], [40].}

⁵ Petersen v Police HC Hamilton CRI-2009-419-11, 20 February 2009, Duffy J.

starting point for a standard third or subsequent driving while disqualified charge will usually be in the vicinity of 10 months’ imprisonment.

[29] Mr Jenson submits that from this starting point the sentencing Judge could rightly have applied an uplift to the starting point in the vicinity of two to three months to take into account the two dangerous driving charges, leading to an end starting point for the driving offences in the vicinity of 12 to 13 months’ imprisonment.

[30] From the above, Mr Jenson submits that a total starting point, taking into account the aggravating and mitigating factors personal to the appellant, would have been in the vicinity of 24 to 25 months. From this, a further uplift would have been appropriate to take into account Mr Borell’s previous convictions which would, at least in part, neutralise the credit for guilty pleas available.

[31] On that basis, Mr Jenson submits that the end sentence taking into account the totality of the offending and the appellant’s aggravating and mitigating features, falls within the range of 18 to 24 months’ imprisonment. Accordingly, the end point of two years reached by the Judge, “though stern” is submitted to be within the range available.

[32] Mr Jenson submits that in those circumstances the end sentence of 12

months’ home detention was proper and appropriate.

[33] Alternatively, he submits that if this Court was to conclude that the end point of two years’ imprisonment was outside the appropriate or acceptable range for sentencing, the Court should be cautious before automatically halving the sentence of imprisonment when calculating the appropriate term of home detention. Mr Jenson observed that this Court has previously identified the dangers implicit in

_{such a course.}⁷

⁶ _{Te Puia v Police HC Palmerston North CRI-2011-454-4, 22 March 2011, Miller J.}

⁷ Golding v Police HC Whangarei CRI2008-483-3, 14 February 2008, Rodney Hansen J at [16].

Relevant law

Assault

[34] In Davidse v Police the defendant was charged with common assault.⁸ In an intoxicated state and following a verbal exchange with the victim, the defendant attacked the victim punching him multiple times in the head. The victim was concussed and bruised and required hospital treatment. In the District Court the defendant was sentenced to six months’ home detention and 200 hours community work, supervision and $500 reparation. On appeal, Whata J held that the sentence of six months’ home detention corresponded with the maximum penalty available. While he acknowledged there were other cases which would be considered more

serious⁹ the disparity and severity was not sufficient to reduce the sentence. The

appeal was allowed for other reasons.

[35] I also take into account Ronaki v Police notwithstanding the limitations of its implications in the context of the present case, as already discussed.

[36] However, both these authorities support the proposition reflected in s 8 of the Sentencing Act 2002. A penalty at or near the maximum must be imposed where the offending is within the most serious or near the most serious category unless circumstances relating to the offender make that inappropriate.¹⁰

Driving while disqualified

[37] In Iwikau v Police the defendant pleaded guilty to one charge of driving while disqualified and one charge of failing to remain stopped.¹¹ The defendant had six previous convictions for driving while disqualified, the first of which was imposed eight years prior to the instant offending. A starting point of 10 months’

_{imprisonment was set in the District Court.}

⁸ _{Davidse v Police HC Auckland CRI-2011-404-245, 30 September 2011.}

⁹ _{Such as Dooley v Police HC Christchurch CRI-2008-409-1, 21 February 2008.}

¹⁰ _{Sentencing Act 2002, ss 8(c) and (d).}

¹¹ Iwikau v Police [2013] NZHC 2515.

[38] On appeal, Williams J observed:¹²

The authorities establish a trend of substantial increases for subsequent offending between the fifth and tenth offences. For instance, a fifth conviction warranted a starting point of two months, while an eleventh conviction was held to warrant a starting point at or around the maximum of two years.

Here, Mr Iwikau has been convicted of driving while disqualified every twelve months or so for the last four years. This is not a case where the offender has relapsed after a long period of non-offending. This is a pattern of reoffending that runs like clockwork.

[39] In Maeva v Police the defendant was charged as though it was his first or second offence, but in reality it was his third. He was sentenced to 200 hours community work.¹³

[40] In R v Yeung the defendant was convicted on his third and fourth offences and

received three months’ imprisonment (concurrently) for both charges.¹⁴

[41] I also note the authorities referred to me by Mr Jenson where this Court has ordered that the normal starting point for a standard third or subsequent driving while disqualified charge would usually be in the vicinity of 10 months’ imprisonment. ¹⁵ However, these cases relate to situations where the defendants were being charged for their fifth or sixth conviction. In accordance with Iwikau in the current case where it is the defendant’s third conviction, a lower starting point is appropriate.

Dangerous driving

[42] The second offence of dangerous driving in the present case relates to the speed and driving manoeuvres undertaken by Mr Borell as he attempted to evade the

_Police.¹⁶

¹² _{At [13].}

¹³ _{Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011.}

¹⁴ _{R v Yeung HC Auckland CRI-2006-092-010945, August 27 2009.}

¹⁵ _{Petersen v Police, above n 5; Te Puia v Police, above n 6.}

¹⁶ The circumstances of the dangerous driving on 26 February 2014 are unknown. No summary of facts was available to this Court nor are the details discussed in the District Court judgment.

[43] In Williams v Police two and a half months’ imprisonment, against a maximum of three months’ imprisonment, was not appealed where the defendant tail gated another car, rammed it through a red light and finally side swiped it causing the car to stop.¹⁷

[44] In Miru v Police a sentence of six weeks’ imprisonment was substituted for two months’ imprisonment where the defendant was driving at 160kph on the open road and 70 to 80kph in a 50kph zone. ¹⁸

[45] In Einan v Police the defendant, who was clocked at 156kph was pursued by the Police resulting in what was described as “some hair-raising driving”. ¹⁹ He was sentenced to one month’s imprisonment. Other elements of sentence, including a destruction order, were appealed. However the length of the sentence was not.

Decision

[46] In relation to the driving while disqualified a sentence of two months’ imprisonment is, my view, at the upper end of the range available to the sentencing Judge. Similarly, the sentence of six weeks’ imprisonment for the dangerous driving charge is, in my view, at the upper end of the available range. It follows that at its highest, the defendant could have been sentenced to is three and a half months’ imprisonment which roughly equates to seven weeks’ home detention.

[47] Thus the order of six months’ home detention together with 200 hours of community work is, in my view, manifestly excessive. In my view 150 hours community work would be appropriate for the driving while disqualified charge and six weeks’ imprisonment appropriate for the 27 April dangerous driving charge. I increase this sentence to two months’ imprisonment to reflect the second dangerous driving charge from the 26 February.

[48] On the assault charge the current sentence is the approximate equivalent of imposing the maximum sentence available for assault. Although it was very serious

¹⁷ _{Williams v Police HC Christchurch CRI-2007-409-67, 29 March 2007.}

¹⁸ _{Miru v Police HC Whangarei CRI-2011-488-10, 11 April 2011.}

¹⁹ Einam v Police HC Hamilton AP30/01, 20 June 2001.

and the consequences could have been even worse than they were, I am of the view that in line with the comments in Davidse v Police this case does not fall into the most serious category. Therefore in accordance with 8(c) of the Sentencing Act it would be inappropriate to impose the maximum sentence. However the assault was serious and therefore in accordance with 8(d) the sentence should be near the maximum. Thus I take a starting point of 10 months’ imprisonment. Further, although Mr Borell had no previous violent convictions, his other numerous and varied convictions disentitle him to a discount for “lack of convictions”. I do not consider there are any other aggravating or mitigating factors other than the plea of guilty.

[49] Mr Borell is entitled to a full guilty plea discount of 25 per cent due to his early plea of guilty. This results in the following sentences:

(a) Driving while disqualified: 150 hours community work.

(b) Dangerous driving (26 February): Six weeks’ home detention

(concurrent).

(c) Dangerous driving (27 April): Six weeks’ home detention

(concurrent).

(d) Assault: Four months’ home detention (cumulative).

[50] This results in a total sentence of five and half months’ home detention and

150 hours community work. I am satisfied that this reflects the totality of the offending.

Result

[51] The appeal is allowed and the sentences for driving while disqualified, dangerous driving and assault are quashed.

[52] The following sentences are substituted:

(a) Driving while disqualified: 150 hours community work.

(b) Dangerous driving (26 February): Six weeks’ home detention

(concurrent).

(c) Dangerous driving (27 April): Six weeks’ home detention

(concurrent).

(d) Assault: Four months’ home detention (cumulative). [53] All disqualifications remain. Can drive again on 2 July 2016.

Moore J

Solicitors:

Mr Burke, Rotorua

Crown Solicitor, Tauranga