Ferris v Police

[2024] NZHC 3548

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2024-419-000104

[2024] NZHC 3548

BETWEEN

BARNETT BURNS FERRIS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	21 November 2024
Appearances:	M J James on behalf of G A Walsh for Appellant L S P Glaser for Respondent
Judgment:	25 November 2024

JUDGMENT OF VAN BOHEMEN J

[appeal against sentence]

This judgment was delivered by me on 25 November 2024, at 4 pm.

Registrar/Deputy Registrar

……………………………..

Counsel/Solicitors: G A Walsh, Hamilton

Crown Solicitor, Hamilton

FERRIS v POLICE [2024] NZHC 3548 [25 November 2024]

[1]    Barnett Ferris appeals his sentence of two years and two months’ imprisonment imposed by Judge R G Marshall in the District Court at Hamilton on 4 September 2024,1 having accepted a sentence indication given on 9 April 2024.2

[2]    Mr Ferris was sentenced on one charge each of failing to stop for red and blue flashing lights,3 dangerous driving,4 driving while disqualified (third or subsequent offence),5 unlawful possession of a firearm,6 unlawful possession of ammunition,7 possession of methamphetamine for supply,8 possession of cannabis for supply,9 possession of a utensil,10 possession of LSD11 and breach of release conditions.12

[3]Mr Ferris advances his appeal on two grounds:

(a)the driving while disqualified charge should not have been laid; and

(b)double counting in the uplifts and the totality of the uplifts applied led to a sentence that was manifestly excessive.

Relevant background

[4]    The following summary of the offending is taken from the police summaries of facts.

May 2023 offending

[5]    On 12 May 2023, police observed Mr Ferris driving at excess speed, swerving and driving on the wrong side of the road. Police activated their siren and lights and

1      Police v Ferris [2024] NZDC 21372 [Sentencing notes].

2      Police v Ferris DC Hamilton CRI-2023-019-2555, 9 April 2024 [Sentence indication].

3      Land Transport Act 1998, s 52A(1)(a)(ii) and (3). Maximum penalty a fine not exceeding $10,000.

4      Section 35(1)(b). Maximum penalty three months’ imprisonment or a fine not exceeding $4,500.

5      Section 32(1)(a) and (4).  Maximum penalty two years’ imprisonment or a fine not exceeding

$6,000.

6      Arms Act 1983, s 45(1). Maximum penalty four years’ imprisonment or a fine not exceeding

$5,000.

7      Section 22B. Maximum penalty fine not exceeding $10,000.

8      Misuse of Drugs Act 1975, s 6(1)(f) and (2). Maximum penalty life imprisonment.

9      Section 6(1)(f) and (2)(c). Maximum penalty eight years’ imprisonment.

10     Section 13(1)(a) and (3). Maximum penalty one year’s imprisonment or a fine not exceeding $500.

11     Section 7(1)(a) and (2). Maximum penalty six months’ imprisonment or a fine not exceeding $500.

12     Sentencing Act 2002, s 96(1). Maximum penalty one year’s imprisonment or a fine not exceeding

$2,000.

pursued Mr Ferris. Mr Ferris sped off, driving down the wrong side of the road and failed to stop.

August 2023 offending

[6]    On 11 August 2023, Mr Ferris was staying at a motel in Hamilton. Police executed a search warrant. In the motel room, his vehicle and on his person, police located:

(a)a large number of methamphetamine utensils;

(b)a sawn-off pump action shotgun;

(c)fifteen rounds of 12-gauge shotgun ammunition;

(d)two LSD tablets;

(e)seven mobile phones;

(f)several clear plastic zip lock bags;

(g)$3,500 in cash;

(h)five sets of scales;

(i)over 100 cannabis seeds; and

(j)4.6 g of methamphetamine.

Sentence indication

[7]    On 9 April 2024, Mr Ferris appeared in the District Court at Hamilton for sentence indication.

[8]    After outlining the charges Mr Ferris faced, Judge Marshall said the sentence indication had to be based on the police summary of facts. The Judge then provided an overview of the offending.13

[9]    The Judge recorded that Mr Ferris had recent convictions from February 2023 for unlawfully possessing a firearm and family violence and that he had been sentenced to one year and eight months’ imprisonment for those charges.14 The Judge then outlined Mr Ferris’s earlier convictions for driving while disqualified (third or subsequent offence) for which Mr Ferris received a one-year sentence of imprisonment. He noted Mr Ferris has seven previous convictions for driving while disqualified. The Judge also referred to a breach of release conditions  from  February 2023 for failing to report.15

[10]   The Judge said the offending in this case occurred while Mr Ferris was on sentence.16

[11]   The Judge noted the prosecution had identified the possession of methamphetamine for supply charge as the lead offence and submitted a starting point of 24 to 26 months with a 16-month uplift for the firearms charges, a three-month uplift for the driving charges and a two-month uplift for previous convictions was appropriate.17 Counsel for Mr Ferris proposed a starting point of 14 months for the methamphetamine charge, a 12-month uplift for the other charges, a three-month uplift for the driving charges and a three-month uplift for the relevant previous convictions.18

[12]   The Judge noted the guideline decision for methamphetamine charges is Zhang v R.19 He confirmed the quantity of 4.6 g fell within Band 1 and that quantities of less than 5 g result in starting points ranging from community-based sentences to up to four years’ imprisonment. The Judge also observed that, because of the

13     Sentence indication, above n 2, at [1]–[6].

14 At [7].

15     At [8]–[9].

16 At [9].

17 At [10].

18 At [11].

19     At [12], citing Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

seven mobile phones, scales and $3,500, there was a low to moderate degree of commerciality involved in the offending.20

[13]   The Judge adopted a starting point on the methamphetamine charge of one year and six months’ imprisonment. He then applied uplifts of one year for the other charges arising from the August 2023 offending, noting the firearms charges alone could have justified an uplift of one year and eight months.21 The Judge then applied a three-month uplift for the driving charges, noting an uplift in excess of 12 months was available.22

[14]   The Judge considered there were serious personal aggravating factors relevant to Mr Ferris’s previous convictions. He noted there were relevant previous convictions from 2023 for unlawfully possessing a firearm and 2022 for driving while disqualified, where prison sentences were imposed. The Judge applied a two-month uplift for this previous offending, a two-month uplift for offending on bail and a two-month uplift for offending on sentence. Accordingly, uplifts for aggravating factors personal to Mr Ferris totalled six months.23 The Judge noted he had treated the breach of release conditions as an aggravating factor so he would not apply any uplift for that.24

[15]   The Judge calculated that would produce an adjusted starting point of two years and nine months’ imprisonment with an uplift of six months for aggravating factors personal to Mr Ferris.25

[16]   The Judge noted there would need to be orders for destruction of the firearms and ammunition, forfeiture of the $3,500 in cash and a 12-month mandatory driving disqualification plus a further six-month mandatory disqualification for failing to stop.26

20     At [12]–[14].

21 At [15].

22 At [16].

23 At [17].

24 At [22].

25 At [18].

26 At [19].

[17]   The Judge  recorded he  was prepared to apply  a 25 per cent discount  for  Mr Ferris’s guilty plea. He noted he was unaware of whether any further discounts could be applied but that he would not know until he had further submissions from counsel and further reports. The Judge said that he did not consider anything less than a custodial sentence would meet the purposes and principles of sentencing such as accountability and deterrence.27

Sentence imposed in the District Court

[18]   Mr Ferris accepted the sentence indication and appeared for sentencing in the District Court at Hamilton on 4 September 2024.28

[19]   Judge Marshall referred to the pre-sentence report which assessed Mr Ferris as being at a high risk of harm from methamphetamine use and a high risk of reoffending. He recorded that Mr Ferris had previously spoken of wanting to make changes in his life and shift his attitude, however, nothing had really worked.29

[20]   The Judge noted Mr Ferris had accepted the sentence indication of three years and three months’ imprisonment together with disqualification from driving.30 He confirmed he had considered Mr Ferris’s explanations for what he wanted to do in the future and the changes he planned to make.31

[21]   The Judge confirmed he would apply a 25 per cent discount for Mr Ferris’s guilty plea.   Having regard to the pre-sentence report, the Judge applied a further   10 per cent discount for Mr Ferris’s background and for the support and the courses he had completed.32

[22]   Referring to the sentencing indication which Mr Ferris had accepted, the Judge said what he had indicated was an 18-month starting point for the methamphetamine charge, a one-year uplift for the firearms and other charges and a three-month uplift

27 At [20].

28     Sentencing notes, above n 1.

29 At [2].

30 At [3].

31 At [4].

32 At [4].

for the breach of release conditions charges, which resulted in the indicated starting point of two years and nine months. The Judge then applied a six-month uplift for personal aggravating factors comprising two months each for relevant previous offending, offending while on bail and offending while on sentence and a 35 per cent discount for personal mitigating factors.   The Judge said that ended up at about     28 months’ imprisonment, which he reduced to 26 months because he wanted “to further acknowledge” the courses Mr Ferris had done. The Judge imposed an end sentence of two years and two months’ imprisonment on the charge of possession of methamphetamine for supply.33

[23]On the remaining charges, the Judge imposed concurrent sentences of:

(a)three months’ imprisonment on the charge of possession of LSD;34

(b)one year’s imprisonment on the charge of possession of cannabis for supply;35

(c)one year’s imprisonment and an order for the destruction of the firearm on the charge of unlawful possession of a firearm;36

(d)one year’s imprisonment and an order for the destruction of the ammunition on the charge of unlawful possession of ammunition;37

(e)three months’ imprisonment and an order for the destruction of the utensil on the charge of possession of a utensil;38

(f)three months’ imprisonment and disqualification  from  driving  for six months from 19 April 2024 on the charge of dangerous driving;39

33 At [5].

34 At [7].

35 At [8].

36 At [9].

37 At [10].

38 At [11].

39 At [12].

(g)disqualification from driving for six months from 19 April 2024 on the charge of failing to stop;40

(h)three months’ imprisonment and  disqualification  from  driving  for 12 months from 19 April 2024 on the charge of driving while disqualified (third or subsequent offence);41

(i)three months’ imprisonment on the charge of breach of release conditions;42 and

(j)an order for forfeiture of the $3,500 in cash.43

Errors in the Judge’s sentence

[24]It is common ground that there were two errors in Judge Marshall’s sentence.

[25]   First, unbeknown to Judge Marshall or Mr Ferris or the police at the time,  Mr Ferris was not formally disqualified from driving on 12 May 2023. Mr Ferris’s period  for  disqualification,  which  was  imposed  when  he  was  sentenced  on    31 October 2022 for driving while disqualified (third or subsequent offence), had expired on 3 May 2023. But because Mr Ferris had not taken the requisite steps to reactivate his driver’s licence, the licence  remained inactive.  On 12  May 2023,   Mr Ferris was driving without a licence. He was not driving while disqualified.

[26]   Secondly, when calculating the adjusted starting point, the Judge made a three-month uplift which he attributed to the breach of release conditions, whereas in his sentencing indication, the Judge had said he would not apply any uplift for breach of release conditions, which he had treated as an aggravating factor. However, when sentencing Mr Ferris, the Judge did not apply an uplift of three months for the driving charges, as he had said he would do in the sentencing indication.

40 At [12].

41 At [13].

42 At [14].

43 At [16].

Approach on appeal

[27]   An appeal against sentence is an appeal against a discretion. Section 250(2) of the Criminal Procedure Act 2011 (CPA) provides that the Court must allow an appeal against sentence if it is satisfied that, for any reason, there was an error in the sentence and that a different sentence should be imposed. In any other case, it must dismiss the appeal.44

[28]   Section 251 of the CPA provides that, if a court allows an appeal against sentence, it must either set it aside and impose another sentence as appropriate, vary the sentence or any part of it or remit the sentence back to the court which originally imposed it.

[29]   The Court of Appeal has confirmed that, in applying s 250(2) of the CPA,   the Court should continue to apply its long-established approach to reviewing sentences.45 An appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of materials submitted on the appeal, that vitiates the lower court’s sentencing discretion.46 Unless there is a material error in the end sentence, the Court will not intervene.47 There will be a material error if the end sentence is manifestly excessive or wrong in principle.48

[30]   In general, the focus is on whether the end sentence is within the available range, rather than the process by which the sentence was reached.49 However, there may be cases where there has been an error that requires correction, even if the sentence imposed is within range.50

Application to adduce fresh evidence

[31]   In a memorandum dated 7 November 2024, Mr Walsh, counsel for Mr Ferris says, since sentencing in the District Court, the Department of Corrections has

44     Criminal Procedure Act 2011, s 250(3).

45     Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30]; and Tamihana v R

[2015] NZCA 169 at [14].

46     Tamihana v R, above n 45, at [14].

47     Te Aho v R [2013] NZCA 47 at [30]; and Tamihana v R, above n 45, at [14].

48     Tamihana v R, above n 45, at [14].

49     Tutakangahau v R, above n 45, at [36]; and Tamihana v R, above n 45, at [14].

50     Tutakangahau v R, above n 45, at [36].

prepared a Hōkai Tapuwae report on Mr Ferris. Mr Walsh seeks to adduce that report as fresh evidence on appeal and for consideration under s 27 of the Sentencing Act 2002.

[32]   Ms Glaser, Crown  counsel,  opposes  admission  of  the  report.  She  says  Mr Ferris had ample opportunity to obtain a report or evidence to provide insight into his background before sentencing, but he failed to do so. Ms Glaser noted that any such evidence should have been adduced by affidavit so the report should be excluded on that ground. Ms Glaser also says that, even if the Court were minded to admit the evidence, that should not change the end sentence because the Judge had already given Mr Ferris a discount of more than 10 per cent for personal factors.

Submissions

Submissions for Mr Ferris

[33]   Ms James, appearing for Mr Walsh, submits that, because the driving while disqualified charge should not have been laid, the uplift of three months indicated in the sentencing indication was too high given that the maximum penalty for dangerous driving is three months’ imprisonment or a fine not exceeding $4,500 and the maximum for failing to stop is a fine. Ms James advised, however, that Mr Ferris would consent to a conviction and discharge on the offence of driving without a licence as proposed by the Crown.

[34]   Ms James accepts that the Judge may have made an error when attributing the uplift of three months to breach of release conditions, rather than for the traffic offending, but says the sentence as handed down must govern the situation. Since  the Judge said in the sentencing indication he had taken the breach of release conditions charges into account when setting the overall starting point, it was clearly an error to apply a separate uplift for that factor when imposing the sentence.

[35]   More generally, Ms James said the number and extent of uplifts applied were disproportionate to the overall offending and had resulted in a manifestly excessive end sentence. Ms James submits the end sentence ought to be less than two years’

imprisonment. Ms James confirms that Mr Ferris is not asking that a sentence of home detention be considered.

Submissions for the Crown

[36]   Ms Glaser accepts Mr Ferris was incorrectly charged with driving while disqualified and that he was unlicenced rather than disqualified at the time of the May 2023 offending. She says Mr Ferris should have been charged under s 31 of the Land Transport Act 1998 rather than s 32. Given Mr Ferris pleaded guilty to the charge, Ms Glaser submits the appropriate course is an appeal against conviction. Ms Glaser expresses a willingness for the matter to proceed by way of a conviction appeal and agrees the charge ought to be quashed. She says that, while Mr Ferris was erroneously charged with driving while disqualified, a miscarriage of justice has not arisen in respect of the sentence imposed.

[37]   Ms Glaser submits the appropriate course is to substitute the driving while disqualified charge with a charge of driving while unlicenced. She says the Court should exercise its discretion under s 234 of the CPA to substitute the charge. If the Court substitutes the charge, Ms Glaser submits a conviction and discharge is appropriate.

[38]   Ms Glaser said the Judge clearly made an error when ascribing the three-month uplift to the breach of release conditions charges rather than to the traffic offending. Ms Glaser says that, even if the Judge may not have given an uplift of three months for the traffic charges if the driving while disqualified charge had been excluded, the overall end sentence could not be said to have been manifestly excessive. Ms Glaser said the uplift of two months for previous offending could be considered generous given Mr Ferris’s history of 19 convictions, which include previous convictions for possession of a firearm, driving while disqualified (third or subsequent offence), dangerous driving and numerous convictions for breach of release conditions. Given that history, a substantially greater uplift could have been made for that element of the sentence.

Analysis

Application to adduce new evidence on appeal

[39]In Mark v R, the Court of Appeal explained:51

[16] The principles for assessing the admissibility of fresh evidence for appeals against conviction are now well established. There is no reason why different principles should be engaged where an appellant wishes to adduce fresh evidence for an appeal against sentence. Thus, if the fresh evidence is not credible it should not be admitted. If it is credible, an assessment needs to be made as to whether or not it could have been presented to the sentencing Court with reasonable diligence. If the evidence is both credible and fresh it should be admitted unless the appellate court is satisfied it would have had no effect on the sentence. If the evidence is credible but not fresh, the appellate court should assess its strength and its potential impact on the sentence. If the appellate court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.

[40]   Having read the Hōkai Tapuwae report, I accept that it is credible but not fresh. However, I do not accept that the evidence is strong or would have an impact on the end sentence. The report is based entirely on Mr Ferris’s account to the report writer and is not supported by any independent evidence. In these circumstances, it would be given limited weight and would be unlikely to have merited a discount of more than 10 per cent. Given that the Judge gave Mr Ferris a 10 per cent discount for personal circumstances, I consider it is unlikely the report would have affected either the discount given or the end sentence.

[41]   For these reasons and given that, as Ms James accepted, the report could have been produced prior to sentence, I do not grant leave to adduce the report in evidence.

Driving while disqualified

[42]   It is also not in dispute that Mr Ferris should not have been charged, let alone convicted, for driving while disqualified when he was not disqualified. Accordingly, I allow Mr Ferris’s appeal against conviction for driving while disqualified and quash his sentence on that charge, including the period of disqualification from driving.

51     Mark v R [2019] NZCA 121 (footnotes omitted).

[43]   However, it is accepted that the facts of the May 2023 offending would support a conviction for driving while unlicenced.52    Accordingly, it is open to me, under     s 234(4) of the CPA to direct a conviction for that offence, provided Mr Ferris agrees.

[44]   Since Ms James has advised that Mr Ferris accepts this course of action, I direct that Mr Ferris be convicted and discharged of driving while unlicensed.

Uplift of three months: driving while disqualified or breach of release conditions?

[45]   Ms James’s remaining submissions address the uplift of three months the Judge made when calculating the adjusted starting point of two years and nine months’ imprisonment. On the one hand, she says the uplift was too high if it was made for traffic offending. On the other hand, she says there should not have been any uplift if it was made for the breach of release conditions charges.

[46]   Clearly, the two errors cannot both apply at the same time. I consider it is obvious that the Judge misspoke when he sentenced Mr Ferris and that the Judge intended to apply the uplift for the traffic offending. That offending occurred separately from the other offending for which Mr Ferris was being sentenced. Accordingly, I do not accept there was any double counting for the breach of release conditions charges.

[47]   However, I do accept that it is unlikely the Judge would have applied an uplift of three months for the traffic offending when the maximum penalty for the most serious charge was three months’ imprisonment, even if there had been a charge for driving while unlicensed. I consider it more likely and appropriate for the Judge to have imposed an uplift of one month. That would have resulted in an adjusted starting point of two years and seven months or 31 months in total.

What would have been the impact of a lower adjusted starting point?

[48]   In Moses v R, the Court of Appeal directed that at all uplifts and discounts personal to the offender are to be applied at the second step, after the adjusted starting

52     Land Transport Act, s 31. Maximum penalty a fine not exceeding $1,000.

point has been established.53 Applying the same uplifts and discounts as applied by the Judge to an adjusted starting point of 31 months (six months’ uplift for the various categories of offending and discounts of 25 per cent for guilty pleas and 10 per cent for personal factors) produces a net discount of 16 per cent and an end sentence of  26 months.

[49]   This is where the Judge ended up, after he had decided to reduce the end sentence he had initially arrived at of 28 months to further acknowledge Mr Ferris’s completion of courses. I doubt very much that he would have made that further deduction had he arrived directly at an end sentence of 26 months. Given Mr Ferris’s seven previous convictions for driving while disqualified, an uplift of one month on the traffic offences would have been seen as generous, especially when Mr Ferris’s period of disqualification had ended only eight days before that offending. The Judge would also have been well aware of the implications of s 86 of the Parole Act 2002, which makes release from prison automatic upon service of half the term of imprisonment when that term is 24 months or less.

Was the end sentence manifestly excessive?

[50]   I agree with Ms Glaser that an uplift of two months for previous offending might be considered generous. However, I see no reason to interfere with that aspect of the Judge’s decision.

[51]   I do not accept that the three uplifts of two months for the various categories of offending were out of order or resulted in an end sentence that was manifestly excessive. The Judge clearly considered that an end sentence of 26 months was appropriate for the range of offending to which Mr Ferris pleaded guilty and so do I, despite the removal of the driving while disqualified charge. It means Mr Ferris will be released from prison when the Parole Board is satisfied he should be released and not automatically upon his serving half the term.

53     Moses v R [2020] NZCA 296, [2022] 3 NZLR 583 at [46].

Result

[52]Mr Ferris’s appeal is granted in part.

[53]   The conviction and sentence for driving while disqualified (third or subsequent offence) are quashed.

[54]   In accordance with s 234(4) of the  Criminal  Procedure Act,  I  direct  that Mr Ferris is convicted and discharged for driving while unlicenced.

[55]The remainder of Mr Ferris’s sentence stands.

G J van Bohemen J