Leslie William Fugle v The Queen

JurisdictionNew Zealand
JudgeBrown J
Judgment Date11 April 2022
Neutral Citation[2022] NZCA 124
Docket NumberCA738/2021
CourtCourt of Appeal
Between
Leslie William Fugle
Appellant
and
The Queen
Respondent

[2022] NZCA 124

Brown, Lang and Mallon JJ

CA738/2021

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Sentence — appeal against a sentence imposed for intentional damage — failure to identify the starting point — assessment of culpability — Crimes Act 1961- Criminal Procedure Act 2011

Appearances:

P L Murray for Appellant

M G Wilkinson and T Bagnall for Respondent

The appeal is dismissed.

JUDGMENT OF THE COURT
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...

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