Beckham v Police [2018] NZHC 324 (6 March 2018)

Last Updated: 11 April 2018

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2018-425-000002 [2018] NZHC 324

BETWEEN	DYLAN LEVI BECKHAM Appellant
AND	NEW ZEALAND POLICE DEPARTMENT OF CORRECTIONS Respondents

Hearing:	5 March 2018
Appearances:	P B Redpath for Appellant R W Donnelley for Respondents
Judgment:	6 March 2018

JUDGMENT OF GENDALL J

Introduction

[1] On 5 December 2017 in the District Court at Invercargill, the appellant, Mr Beckham was sentenced by Judge Roberts to three years’ imprisonment on a number of charges. These were of possession of methamphetamine and cannabis for supply, offering to sell cannabis, breach of release conditions, failing to answer bail, intentional damage, possession of a pistol, and possession of a knife in a public place.¹ He appeals that sentence, saying it departed from a sentencing indication previously given on 3 July 2017 by Judge Brandts-Giesen. He contends also that it failed to take into account time served on electronically monitored bail (EM bail).

¹ Police v Beckham [2017] NZDC 27946.

BECKHAM v NEW ZEALAND POLICE [2018] NZHC 324 [6 March 2018]

The offending

[2] Mr Beckham was released from prison on 14 September 2016 on a special condition that he attend a departmental ‘motivational’ programme. The earliest charge currently at issue arose when he failed to comply with that condition. He appeared in the Invercargill District Court on that charge in February 2017 and was bailed to reappear later that month. He failed to appear and was also charged with failing to answer bail.

[3] In March 2017 a house at which Mr Beckham was present, with his partner and their daughter, was searched pursuant to a warrant. Found there was 2.29 grams of methamphetamine (street value $2,290), packaged in small quantities in snap lock bags and 4.98 grams of cannabis similarly packaged. Cash, scales, and other drug related paraphernalia were also located at the property.

[4] The next charge chronologically was one of intentional damage. In June 2017 Mr Beckham was at his mother’s address, became upset, and threw his dinner plate at the wall causing damage to the gib board.

[5] In relation to the above charges Mr Beckham had been remanded on EM bail at his mother’s address. In September 2017, that address was searched pursuant to a warrant. A Ruger .22 calibre pistol with a silencer was located between Mr Beckham’s bed base and the mattress. The safety catch was off, and the pistol was loaded with a 10-shot magazine. It also had a round in the chamber. It was set up in such a way that the handle grip was readily available, and just visible looking at the mattress. A number of methamphetamine point bags were also located in the bed, two of which had methamphetamine in them. A “drug dealer’s kit”, with point bags, straws, scoopers, and electronic scales was also located.

[6] After the search, the appellant was located, and taken to the Police station. On the way there, he admitted he had a knife hidden in the inside pocket of his jacket. On searching the appellant this was found to be a 30cm butcher’s knife. The appellant had been located by Police after coming out of a meeting at the probation office. As such the summary of facts alleges Mr Beckham had taken the knife into the meeting.
[7] Subsequently Mr Beckham’s phone was searched. A number of Facebook messages were found in which Mr Beckham had offered to sell cannabis to associates. In total he had offered to supply on five occasions, including offering an ounce for
$450 and half an ounce for $250.

The sentence indication

[8] Judge Brandts-Giesen, as I have noted, gave a sentencing indication on 3 July 2017 in relation to the charges up to and including the count of intentional damage.² In relation to the drug charges his Honour said “I do not pretend for a minute that you were a drug ‘supermarket’ or even a ‘corner store’ but clearly you were at least a ‘roadside hawker’”.

[9] Taking the possession of methamphetamine for supply as the lead charge, Judge Brandts-Giesen indicated a 24-month starting point. A four-month uplift would be applied for the possession of cannabis for supply charge, and for the remainder of the charges – failing to appear, wilful damage, and breaching release conditions – a further two-month uplift.

[10] From that overall starting point of 30 months a four-month discount would be applied for Mr Beckham’s “relative youth” (23 years), the Judge noting also his clear addiction problems. What would be a “late-ish plea of guilty” would entitle him to a further 20 per cent discount, which, rounded down, he said, would result in a sentence of 21 months.

[11] The Judge then said:

I think the answer for you is probably to have home detention along with supervision, so that you can be guided as well as punished. There is some hope that a home address, such as your mother’s, is suitable for home detention, bearing in mind that she has taken quite a strong line in trying to keep you in line. There will obviously need to be post detention conditions.

² Police v Beckham DC Invercargill, CRI-2015-001056, 3 July 2017.

[12] A final indication of 11 months’ home detention was given, which also accounted for half a month added in substitution of an existing community work sentence that would be cancelled.

The sentencing

[13] When the matter came before Judge Roberts for sentencing, the second tranche of charges was also at issue. The Judge acknowledged the sentence indication, but said it had been “well and truly overtaken by subsequent events”.

[14] The Judge referred to two probation reports. The first, dated from September 2017, assessed Mr Beckham as being at a high risk of reoffending. He “presented as oppositional and aggressive”, something which the Judge noted was consistent with methamphetamine use. He had frequently exhibited such behaviour and minimised his offending, displaying no remorse. The second noted the offences had been committed whilst on EM bail, but suggested home detention may still be an alternative sentence to imprisonment.

[15] The Judge noted submissions from counsel that Mr Beckham had become “a different person entirely” after two months of abstinence from drugs, having rediscovered ambitions that his addiction had robbed him of.

[16] However, Judge Roberts was of the view that, in light of the second tranche of offending, and in particular the firearm charge, home detention was no longer appropriate. The offences were committed while on EM bail. He had “exhibited unnaturally aggressive and combative attitudes at interview” and has been “unable to engage civilly with Corrections”. A submission that the firearm was there because Mr Beckham was contemplating taking his own life was rejected. The Judge said:

If that were true there would be no need for anything other than a single bullet. I repeat, there was a magazine containing eight bullets... it was ready to fire. Your counsel contends there are no sinister connotations. The reality is there are sinister connotations. Once more you were dealing drugs. The fallacy in your claim that you were contemplating suicide is exposed when one has regard to the fact that very day you took a knife into the probation office. That was not there to enable you to stab yourself. I reject the claim that the gun can be accommodated by inclination towards suicide.

[17] The firearm, the Judge said, moved the offending “to a higher level”, and “was realistically in [Mr Beckham's] hands [who was] campaigning as an active criminal, dealing and using drugs”.

[18] On the second tranche of offending, the Judge took a starting point of 18 months’ imprisonment, which took into account the fact the offending occurred while on bail. In relation to the offensive weapon charge an uplift of six months was applied.

[19] This two year period Judge Roberts added to the 30-month starting point indicated by Judge Brandts-Giesen for the first tranche of offending. The Judge then allowed a six-month discount for totality, and a full year (25 per cent) discount to reflect the “full concession” for guilty pleas. That left an overall sentence of three years.

[20] Concluding, the Judge said:

I am not prepared to allow concessions attaching to time spent on e-bail. That was an alternative to a custodial remand. It was a waste of time and I have no doubt that offending commenced immediately after your release.

Jurisdiction and approach to appeal

[21] Mr Beckham appeals as of right.³ This Court can only allow the appeal if it is satisfied that there is an error in the sentence imposed and that an alternative sentence should be imposed.⁴ If the sentence under appeal can be properly justified having regard to relevant sentencing principles, this Court cannot substitute its own views for those of the sentencing Judge. The sentence must be either manifestly excessive or inappropriate if the sentencing Judge’s discretion is to be interfered with.

[22] It is not enough that the Judge made an error in his reasoning: the focus is on the sentence imposed rather than the process by which the sentence was reached.⁵

³ Criminal Procedure Act 2011, s 244.

⁴ Criminal Procedure Act, s 250.

⁵ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

Grounds of Appeal

[23] Before me, Mr Redpath for the appellant stated that this appeal was effectively not an appeal against the substance of the sentence finally imposed, but rather about errors he alleges Judge Roberts made in reaching his decision that meant his overall sentence was too high. With this in mind, what is apparent is that Mr Redpath advances two discrete grounds on appeal. The starting points, uplifts, and discounts the Judge applied are not challenged. However, he says the Judge erred by not also applying the four-month discount for personal factors (age, addiction) that Judge Brandts-Giesen included in his sentencing indication. He also submits that a further discount in the vicinity of two months should have been applied to take into account the time Mr Beckham spent on EM bail prior to sentence.

Sentence indication discount for personal factors

Submissions

[24] Mr Redpath accepts that only the Judicial Officer who gave the sentencing indication is bound by it and as such Judge Roberts was not under an obligation to follow the indication.⁶ However, he notes that s 115(2)(b) Criminal Procedure Act requires the Court to grant leave to a defendant to withdraw a plea of guilty if they propose to depart from the sentencing indication. He submits that s 115 anticipates the Judge will indicate they are to depart from the indication and give an opportunity for the defendant to vacate their guilty plea. He refers to the Court of Appeal’s judgment in Taylor v R in which the Court said:⁷

A sentence indication generates an expectation. If it is relied upon, and then for whatever reason the expectation is not met, the accused must be given the opportunity to vacate the pleas. What is in issue is the integrity of the sentence indication system.

[25] Mr Beckham is not seeking to appeal his conviction on the ground that he was not given an opportunity to vacate his pleas, and Mr Redpath accepts a sentence of home detention became unrealistic in light of the later charges. However, he says that

⁶ Criminal Procedure Act, s 116(3).

⁷ Taylor v R [2013] NZCA 55 at [23].

as the Judge did not say he was departing from the sentence indication, he should have included the four month discount the Judge had planned to grant for personal factors.

[26] Responsibly, Mr Redpath also points out that the Court should have cancelled the community work sentence and imposed a further two to four weeks’ prison on the sentence as per the indication.

[27] Mr Donnelly for the Crown submits the Judge was correct to depart from the sentence indication given the changes in circumstances.

Analysis

[28] As Judge Roberts was not the Judicial Officer that gave the indication, he was not bound by it. However, I accept that the effect of s 115(2)(b) is that the Judge ought to have given an opportunity for the appellant to vacate his guilty pleas on the first tranche of charges. The Judge’s failure to do so would be grounds under s 252 Criminal Procedure Act for a successful appeal against conviction and for Mr Beckham to be given an opportunity to re-enter pleas.

[29] However, that is not what the appellant seeks, and it does not necessarily follow that the failure to allow an opportunity to vacate pleas means the sentencing Judge was bound by the indication.

[30] In Te Tau v Police, MacKenzie J allowed an appeal against sentence in circumstances like the present, where the sentencing Judge had departed from another Judge’s sentence indication and had not given the opportunity for the plea to be vacated.⁸ There the indication was that a “full discount” for guilty plea would be awarded, but the sentencing Judge had only given 15 per cent. The sentence was remedied to be in line with the indication.

[31] However, this is not always the approach taken on sentence appeals in such cases. In Wilson v R, Wylie J rejected the submission that the sentence should be amended to be in line with the indication as a matter of course, saying “If I am to allow

⁸ Te Tau v Police [2015] NZHC 1716.

the appeal, I must also be satisfied that a different sentence should have been imposed.
I must consider afresh what sentence was appropriate.”⁹

[32] That approach was followed in Appuhamilage v Police. There, Moore J said:¹⁰

However, I prefer the approach adopted by Wylie J namely that before altering the sentence the appellate Court must be persuaded that the sentence under appeal is wrong and a different sentence should be imposed. This approach is consistent with s 250 of the CPA. It is also consistent with s 252 of the CPA as the appellate Court is not bound by the sentence indication. Ultimately the issue for the appellate Court is whether the sentence is correct, not whether it is consistent with the indication.

[33] Similarly in Nuku v R, Mander J said:¹¹

[19] This Court has taken a varied approach to the situation where a sentence imposed differs from the sentence indicated and the defendant does not wish to vacate his or her plea. In some cases, notwithstanding the sentence imposed being within the available range, it was considered appropriate to adjust the sentence on appeal to conform with the indication. In other cases, while satisfied an error had occurred insofar as the sentence failed to conform with that previously indicated, the Court held that to allow the appeal it would also need to be satisfied a different sentence should have been imposed when considering the matter afresh.

[20] In my view, the latter course will ordinarily be the appropriate approach.

[21] The danger that arises when a sentence does not match that indicated is that, because a defendant's expectations have not been met, the plea has been entered on a false or mistaken premise. In order to meet that expectation it is necessary for an appellate Court to provide the appellant with the opportunity to vacate his or her plea in order to remedy the error and purge the potential injustice arising from the faulty process.

[22] Because Mr Nuku does not wish to avail himself of that course despite being offered the opportunity to do so, any potential miscarriage resulting from a causal connection between the error and the entry of the plea can be discounted.

[34] I respectfully agree with this approach confirmed by Mander J in Nuku.¹² I must be satisfied that a different sentence should have been imposed, and not merely that the sentence differed from that indicated.

⁹ Wilson v R [2015] NZHC 298 at [37].

¹⁰ Appuhamilage v Police [2015] NZHC 2355 at [32].

¹¹ Nuku v R [2016] NZHC 2255.

¹² Above n 11.

[35] However, in the present case the matter is simpler because the end sentence did not in fact materially differ from the term of imprisonment in the sentencing indication. Putting home detention to one side, which Mr Redpath accepts was no longer a realistic option, the indicated prison sentence was one of 21 months. That was on the basis of only 20 per cent discount for guilty pleas. Judge Roberts, at sentencing, allowed the full 25 per cent on the 30 month starting point – giving a sentence of 22 months, 2 weeks. In addition, the indication was that there should be a further uplift for the vacated community service sentence which Judge Roberts did not include in his sentence and for which Mr Redpath accepts one month would have been appropriate. When that is added, the discrepancy in sentence from that indicated is a mere two weeks.

[36] Mr Beckham cannot eat his cake and have it too. If he wants to rely on the sentence indication that means also taking the further uplift and the lower discount for guilty pleas. Although the Judge got there by a slightly different route, he effectively ended up with the same sentence as that indicated by Judge Brandts-Giesen would have been appropriate in lieu of home detention.

[37] In any event, I am satisfied that the sentence overall was appropriate in light of the sentence indication and the changed circumstances at sentencing.

Discount for time on EM bail

Submissions

[38] Mr Redpath says the Judge considered that the offending was while on EM bail as an aggravating feature in setting the starting point. His Honour’s reason for not awarding a discount for time spent on bail was that “it was a waste of time and I have no doubt that offending commenced immediately after your release”. This, he submits, was to double-punish Mr Beckham for offending on bail.

[39] Mr Redpath draws attention to s 9 Sentencing Act which relevantly provides:

9 Aggravating and mitigating factors

...

(2) In sentencing or otherwise dealing with an offender the court must take into account the following mitigating factors to the extent that they are applicable in the case:

...

(h) that the offender spent time on bail with an EM condition as defined in section 3 of the Bail Act 2000.

...

(3A) In taking into account that the offender spent time on bail with an EM condition under subsection (2)(h), the court must consider—

(a) the period of time that the offender spent on bail with an EM condition; and

(b) the relative restrictiveness of the EM condition, particularly the frequency and duration of the offender’s authorised absences from the electronic monitoring address; and

(c) the offender’s compliance with the bail conditions during the period of bail with an EM condition; and

(d) any other relevant matter.

[40] Mr Redpath accepts that being on restrictive bail is materially different to being remanded in custody. However, he says given the fact that Mr Beckham was restricted from working or attending matters in the community for four months this should count as a mitigating factor, and the failure to do so along with an uplift for offending on bail constitutes double-punishment.

[41] Mr Donnelly says the Judge did not err given the extent and seriousness of the offending committed on EM bail, and his attitude towards Corrections staff during that process. Regardless, he says the overall sentence was not manifestly excessive – in fact, the starting points were lenient and the discounts generous.

Analysis

[42] There can be no dispute that Judge Roberts was entitled to take into account offending while on bail as an aggravating factor. It increases the seriousness of the
offence by virtue of the disregard shown for Court imposed sanctions. There can also be no dispute that, ordinarily, a Judge is entitled to discount time spent on EM bail as a mitigating factor if there has been failure to comply with EM bail conditions. The question here is whether to regard it as an aggravating factor to both charges faced by the appellant and to exclude it as a mitigating factor constitutes double punishment.

[43] In Gage v R the sentencing Judge applied a one month uplift for the fact the offending occurred while on bail.¹³ No discount was given to reflect the 5 months the appellant had spent on restrictive EM bail. On appeal to the Court of Appeal it was argued that there should have been a discount for time spent on EM bail. The Court dismissed the appeal, remarking:

[26] We are not persuaded that a further discount was warranted by the fact that the appellant was on EM bail between April and September 2013. In the light of the appellant's breaches of bail, his further offending while on ordinary bail and while on EM bail, no discount for the approximately five months he was on EM bail was warranted.

[44] In Murray-MacGregor v R the sentencing Judge mentioned offending while on bail as a factor in fixing the starting point, although it was unclear to what extent.¹⁴ No discount was given for the seven months he was on bail with a 24-hour curfew. The Court of Appeal rejected the submission a further discount should have been given, concluding:¹⁵

... the period of bail was not particularly lengthy (around seven months); secondly, for almost three months he was at home with his partner and children; thirdly, given the nature and duration of the offending and the fact that there was significant offending while on bail, we have reached the conclusion that the sentence of three years imprisonment imposed on Mr Murray-MacGregor was in fact lenient.

[45] Here, it is not clear to what extent the offending while on bail was factored into the starting point. I accept that sometimes there may be a risk of double-counting where there is both an uplift and no discount for time spent on EM bail. However, I agree with Mr Donnelley that the overall sentence was well within range, and the starting point adopted would have been available even had the offending not been

¹³ Gage v R [2014] NZCA 140.

¹⁴ Murray-MacGregor v R [2011] NZCA 66.

¹⁵ At [22].

while on bail. Given this, and in light of the above authorities, it cannot be said that the Judge was bound to give a discount nor that not doing so made the sentence manifestly excessive.

Conclusion

[46] Mr Beckham has not demonstrated there was any error in the sentence imposed. The appeal is dismissed.

[47] For the avoidance of doubt, I confirm the sentence of community work the appellant was subject to prior to the current sentence is quashed. It is adequately accounted for in the present sentence.


...................................................

Gendall J

Solicitors:

Eagles Eagles & Redpath, Invercargill Preston Russell Law, Invercargill