BENJAMIN DURBIN v NEW ZEALAND POLICE [2023] NZHC 2450

BENJAMIN DURBIN v NEW ZEALAND POLICE [2023] NZHC 2450 [1 September 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-112[2023] NZHC 2450BETWEEN BENJAMIN JOHN DURBINAppellantAND NEW ZEALAND POLICERespondentHearing: 31 August 2023Counsel: H L Beaven and O K Jarvis for AppellantG E R Alloway for RespondentJudgment: 1 September 2023JUDGMENT OF CHURCHMAN JIntroduction[1] Benjamin Durbin, aged 42, appeals his sentence of three years' imprisonmentin respect of two charges of driving whilst disqualified, third or subsequent, to whichhe pleaded guilty.[2] Judge Couch, in the Christchurch District Court convicted him of:1(a) two counts of driving whilst disqualified, third or subsequent;21 Police v Durbin [2023] NZDC 11674.2 Land Transport Act 1998, s 32(1)(a) and (4). The maximum penalty is two years' imprisonmentor a fine not exceeding $6,000.(b) two counts of obtaining by deception under $500;3(c) five counts of theft of goods valued between $500 and $1000;4(d) 14 counts of theft under $500;5(e) one count of possession of a cannabis plant;6(f) one count of possession of methamphetamine;7 and(g) one count of possession of methamphetamine utensils.8BackgroundThe offendingDriving whilst disqualified[3] The District Court disqualified Mr Durbin from driving for two years from16 February 2021. Mr Durbin drove on 27 April and 30 May 2022. He was convictedof two counts of driving whilst disqualified, third or subsequent, because he had ahistory of similar offending.[4] In April 2022, he was towing a loaded tandem trailer which only had threewheels. The singular wheel on one side came off the trailer and collided with twooncoming cars.[5] In May 2022, he was stopped by Police for using a mobile phone whilstdriving.3 Crimes Act 1961, ss 240(1)(a) and 241(c). The maximum penalty is three months' imprisonment.4 Section 223(c). The maximum penalty is one year imprisonment.5 Sections 219 and 223(d). The maximum penalty is three months' imprisonment.6 Misuse of Drugs Act 1975, s 7(1)(a) and (2). The maximum penalty is three months' imprisonmentor a fine not exceeding $500.7 Section 7(1)(a) and (2). The maximum penalty is six months' imprisonment and a fine notexceeding $1,000.8 Section 13(1)(a) and (3). The maximum penalty is one year imprisonment and a fine not exceeding$500.Obtaining by deception[6] On 11 July 2022, the appellant advertised firewood for sale on FacebookMarketplace. The victim transferred $360 for the firewood into the appellant's accountbut the appellant did not deliver the firewood as agreed or refund the victim's money.The appellant repeated this deception to a second victim on 13 July 2022. He wasconvicted of two counts of obtaining by deception.Theft and shoplifting[7] On 1 November 2022, the appellant stole grocery items valued at $110.80 fromCountdown supermarket in Hornby, Christchurch.[8] On 2 November 2022, the appellant stole grocery items valued at $180.90 fromCountdown supermarket on Moorhouse Avenue in Christchurch.[9] On 3 November 2022, he stole grocery items valued at $388.68 from the sameMoorhouse Avenue Countdown supermarket.[10] On 4 November 2022, the appellant left the Pak n Save supermarket onMoorhouse Avenue, Christchurch without paying for a can of beer valued at $4.99.Later that day, he stole grocery items valued at $498.80 from the same supermarket.[11] On 15 November 2022, the appellant stole grocery items valued at $395.18from the New World supermarket in Marshlands, Christchurch.[12] On 21 November 2022, the appellant stole grocery items valued at $268.09from the New World supermarket in St Martins, Christchurch.[13] On 22 November 2022, the appellant stole liquor valued at $110.52 from theNew World supermarket in Ilam, Christchurch.[14] On 28 November 2022, the appellant stole grocery items valued at $342.40from the Countdown supermarket in Avonhead, Christchurch. On 1 December 2022,the appellant stole grocery items valued at $505.19 from the same supermarket.[15] On 29 November 2022, the appellant stole grocery items valued at $426.98from the Fresh Choice supermarket in Merivale, Christchurch.[16] On 28 January 2023, the appellant stole grocery items valued at $49.99 fromthe Pak n Save supermarket in Riccarton, Christchurch.[17] On 30 January 2023, the appellant stole $899.48 worth of items from theMitre 10 Mega store in Ferrymead, Christchurch.[18] On 31 January 2023, the appellant stole grocery items valued at $169.98 fromthe Pak n Save supermarket in Riccarton, Christchurch.[19] On 2 February 2023, the appellant stole grocery items valued at $563.89 fromthe Countdown supermarket in Kaiapoi, Christchurch. On 9 February 2023, theappellant stole grocery items valued at $622.32 from the same supermarket.[20] On 14 February 2023, the appellant stole items valued at $368.33 from theMitre 10 Mega store in Ferrymead, Christchurch. He returned on 6 March 2023,stealing additional items valued at $79.98.[21] On 19 March 2023, the appellant stole grocery items valued at $500 from theFresh Choice supermarket in Parklands, Christchurch.Possession of drugs and drug paraphernalia[22] When the Police searched the appellant upon his arrest, he had a glass pipecommonly used for consuming methamphetamine in his pocket. He also had0.09 grams of methamphetamine and 0.61 grams of cannabis in his pocket.Criminal history[23] As the District Court noted, the appellant has a history of criminal offending,beginning in 1999 and continuing through to the present offending. By the DistrictCourt's count, he has 33 convictions for offences of dishonesty; 18 drug-relatedconvictions; and numerous driving offences. The driving offences include 15 previousconvictions for driving while disqualified or suspended and 12 other driving-relatedoffences.Procedural history[24] On 9 June 2032, Judge Couch sentenced Mr Durbin to three years'imprisonment.[25] The Judge regarded the driving whilst disqualified charges as the lead charges.9The Judge regarded each of these charges as a separate offence unconnected with theother and adopted a separate starting point for each charge.10 The Judge took a startingpoint of 18 months' imprisonment.11[26] As regards the other charges, the Judge said:12[9] Given the amounts of money involved, the two charges of obtainingby deception each have only a maximum penalty of three months'imprisonment. The repetition of an identical method of offending, however,clearly indicates premeditation, and the amount involved in each case, whileless than $500, was not trivial. For these two charges together, I take a startingpoint of three months' imprisonment.[10] I turn, then, to the thefts. Again, these were clearly premeditated and,as you admitted to police, were to get goods to sell for cash. This is consistentwith the pattern of offending which I note included five separate thefts fromsupermarkets in four days, totalling $1,300 worth of goods. In total, you stole$6,486.5 worth of goods over those 19 occasions. For the totality of youroffending involved in the 19 charges, I take a starting point of 12 months'imprisonment.[11] The final three charges under the Misuse of Drugs Act are very muchtowards the low end of the scale and I apply an uplift of one month for them.[27] The Judge therefore arrived at a combined starting point of four years and fourmonths' imprisonment.13 However, the Judge recognised the significant degree ofoverlap involved in the offending and reduced the starting point to 40 months'imprisonment.9 Police v Durbin, above n 1, at [6].10 At [8].11 At [8].12 At [9]–[11].13 At [12].[28] The Judge considered there were two aggravating factors. The Judge applieda 10 per cent uplift because the two charges of driving while disqualified arose whilethe appellant was on bail. The Judge applied a further 10 per cent uplift in respect ofthe appellant's criminal history.[29] The Judge considered there were two mitigating factors. First, the appellantentered guilty pleas on all charges. The Judge applied a 25 per cent discount. Second,in respect of the dishonesty offending but not the lead offending, the appellant wasmotivated by his methamphetamine habit to offend in order to maintain his habit.Applying Zhang,14 the Judge applied a five per cent discount.[30] The Judge arrived at an end sentence of 36 months' imprisonment. The Judgeapplied the sentence as follows:15(a) On each of the charges of driving whilst disqualified, third orsubsequent, you will be sentenced to imprisonment for one year andsix months. Those sentences will be cumulative.(b) On each of the charges of theft between $500 and $1,000, you will besentenced to three months' imprisonment.(c) On each of the other charges, except the possession of cannabis, youwill be sentenced to imprisonment for one month.(d) On the charge of possession of cannabis, you will be convicted anddischarged.(e) On each of the driving charges, you will be disqualified from holdingor obtaining a driver licence for one year and six months from today.(f) On CRN ending 6608, there will also be an order for confiscation ofthe Nissan motor vehicle (registration AHR764). That is confiscatedpursuant to s 129 of the Sentencing Act. I note that you have told theCourt that this vehicle has been stolen and it is no longer in yourpossession. That does not affect the operation of s 129. If the policeare able to locate the vehicle, then it will be confiscated.14 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.15 Police v Durbin, above n 1, at [20].SubmissionsFor the appellant[31] Ms Beaven, for the appellant, submits the end sentence was manifestlyexcessive and that the appellant should have received a shorter sentence ofimprisonment. In particular, the starting point of 18 months' imprisonment for eachcharge of driving while disqualified was submitted to be too high when compared toother cases for similar offending. The Judge applied insufficient discounts foraddiction and personal background factors.[32] Counsel notes there are two approaches the courts may take to assessing thestarting point for recidivist disqualified driver offences. The Court may either refer tothe index offending and then uplift for any prior offending,16 or it may consider thetotal combined effect of the driving while disqualified charges and the defendant'srecidivism.17 In this case, the District Court adopted the second approach, consideringprevious driving while disqualified convictions when setting the starting point.[33] Counsel submits that because of the Court's approach to setting the startingpoint, Mr Durbin was not fully informed of the extent to which his previousconvictions were accounted for in his sentence. In any event, counsel submits thestarting points were manifestly excessive, particularly when taken cumulatively.[34] Counsel properly acknowledges that in this case the driving offences weretemporally separated by approximately one month and this may appropriately attracta cumulative approach where the individual starting points frame the culpability of theoffending. However, counsel submitted the cumulative starting point for the leadoffending of 36 months fell outside of the available range, by reference to four caseswhich were submitted to be similar:16 Peterson v Police [2009] BCL 223 (HC); and Keenan v Police [2014] NZHC 1894.17 Maxwell v Police [2013] NZHC 3172; and Drinkwater v Police [2013] NZHC 1036.(a) In O'Donnell v Police, the High Court found the starting point for anoffender's fifteenth conviction should be no more than 15 months'imprisonment.18(b) In Stacey v Police, the High Court upheld a starting point of 20 months'imprisonment for the appellant's twenty-first conviction.19(c) In Brown v Police, the High Court adopted a starting point of18 months' imprisonment for three charges of driving whiledisqualified and other charge, which the appellant committed whileserving a sentence for a previous driving conviction.20 Those threeconvictions were the appellant's sixth, seventh and eight for thatoffence.(d) In Wilson v Police, the appellant was sentenced on his thirteenth tosixteenth convictions for driving whilst disqualified, three of whichwere committed whilst on bail and subject to release conditions forsimilar offending.21 The High Court upheld a starting point of ninemonths' imprisonment for each charge. The Court imposed the startingpoint cumulatively, which it noted was appropriate because the offencestook place on separate occasion between September and February.22The starting point encompassed the appellant's previous convictions.[35] The appellant seeks to adduce new evidence by way of a cultural report unders 27 of the Sentencing Act 2002. No such report was before the District Court. Thereason for the commissioning of a s 27 report was that Mr Durbin shared informationto his counsel after his sentencing about events in his childhood that may havecontributed to his offending.[36] Counsel refers to Mark v R, where the Court of Appeal said:2318 O'Donnell v Police [2012] NZHC 997 at [16].19 Stacey v Police [2018] NZHC 3280.20 Brown v Police [2017] NZHC 1039.21 Wilson v Police [2016] NZHC 506.22 At [19].23 Mark v R [2019] NZCA 121 at [16].[16] The principles for assessing the admissibility of fresh evidence forappeals against conviction are now well established. There is no reason whydifferent principles should be engaged where an appellant wishes to adducefresh evidence for an appeal against sentence. Thus, if the fresh evidence isnot credible it should not be admitted. If it is credible, an assessment needs tobe made as to whether or not it could have been presented to the sentencingCourt with reasonable diligence. If the evidence is both credible and fresh itshould be admitted unless the appellate court is satisfied it would have had noeffect on the sentence. If the evidence is credible but not fresh, the appellatecourt should assess its strength and its potential impact on the sentence. If theappellate court considers that the sentence could be manifestly excessive if theevidence is excluded, then it should be admitted notwithstanding that it is notfresh.[37] Counsel accepts that the evidence is not fresh because it could have beenobtained before sentencing but submits it is credible, cogent and will assist this Courton appeal because it shows a causal connection between Mr Durbin's backgroundcircumstances and his offending.[38] Counsel submits the Judge applied an insufficient discount for the factorsoutlined in the Provision of Advice to Courts (PAC) report. The PAC report describeshow the appellant's offending was influenced by his methamphetamine use, andsubsequent addiction, which caused a fast descent into criminal behaviour. Counselrefers to Zhang which found that offending committed under the influence of amethamphetamine addiction, when that addiction is causative of the offending, canjustify discounts of up to 30 per cent.[39] Counsel notes the appellant's background factors include cultural andeconomic deprivation. Applying Berkland v R, counsel says these background factorshave a demonstrated nexus to the offending which reduce the appellant's culpability.24The cultural report notes the appellant was sexually assaulted as a child. His sexualabuse has had lasting repercussions on his decision-making. It details that there is astrong link between childhood sexual abuse and future alcohol and substance use.Counsel submits the appellant's sentence should have been discounted by between 15and 20 per cent for his addiction and personal background factors.24 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.For the respondent[40] Mr Alloway, for the respondent, submits the cumulative sentence for drivingwhile disqualified was appropriate because the two offences were not a connectedseries of events.[41] Counsel refers to Hingaia v Police where the appellant was sentencedaccording to two cumulative starting points for two offences of driving whilstdisqualified on two separate days.25 The cumulative starting point was 21 months'imprisonment. The High Court dismissed an argument on appeal that the sentencingJudge had not accounted for the totality principle because the cumulative starting pointwas close to the maximum sentence, noting there were two separate events of drivingwhilst disqualified.[42] Counsel also refers to R v Borland where the High Court imposed a cumulativesentence for two charges of driving while disqualified.26 The appellant faced othercharges arising from the first incident of driving while disqualified, and just the drivingcharge in the second incident.[43] Counsel submits the 18-month starting point for each driving offence waswithin range when considering the appellant was appearing for his 16th and 17thconvictions for driving while disqualified, that the offending involved poor driving,and two similar cases. In Stacey v Police, the appellant appealed his sentence for his21st conviction of driving while disqualified, the High Court upheld a starting pointof 18 months' imprisonment, noting it was within range.27 Garlick v Police, theappellant appeared on his 18th conviction for driving while disqualified, and the HighCourt upheld a starting point of 20 months' imprisonment.28[44] The respondent opposes the appellant's application to adduce the s 27 culturalreport on appeal. Counsel notes the evidence is not fresh because it could have beenobtained in advance of sentencing and submits that it is not cogent because the report25 Hingaia v Police HC Auckland AP/124/99, 13 August 1999.26 R v Borland HC Christchurch CRI-2007-009-1461, 8 November 2007.27 Stacey v Police, above n 19.28 Garlick v Police [2016] NZHC 572.only provides insight into the appellant's drug addiction. Evidence of his addiction isalready before the Court.[45] As regards the mitigating factors, counsel submits that the dishonesty offencesonly accounted for 15 months' imprisonment of a 52-month starting point ofimprisonment, or 25 per cent of the total starting point. A five per cent discount in thatcircumstance was adequate.[46] In the respondent's view, the sentence was within range and the Court shoulddismiss the appeal.Relevant lawApproach to sentencing[47] The appellant's right of first appeal against his sentence is under s 244 of theCriminal Procedure Act 2011. An appeal against sentence is an appeal against theJudge's discretion. Under s 250 of the Criminal Procedure Act, the appeal court mustallow the appeal if it is satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[48] Despite the statute making no express reference to "manifestly excessive", thisprinciple is well-established in the court's approach to sentence appeals.29 An appealcourt must not tinker with the end sentence if the end sentence is within range30 as itmust be shown that the sentence was manifestly excessive or wrong in principle.31The focus is more upon the end sentence than the process by which the Judge reachedthat end sentence.29 Ripia v R [2011] NZCA 101 at [15].30 At [15].31 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].[49] In Moses v R, the Court of Appeal introduced a general two-step approach tosentencing.32[50] The first step requires the Court to calculate the starting point incorporating theaggravating and mitigating factors of the offence, considering consistency betweensimilar offending.[51] At the second step, the starting point is then adjusted to incorporate theaggravating and mitigating factors personal to the offender, including any guilty pleadiscount. The end sentence should reflect the totality of the offending and, barringother considerations, be the least restrictive outcome that is appropriate in thecircumstances.AnalysisSentencing test: stage one[52] Having considered the precedent cases referred to by both parties and theseriousness of the offending, I conclude the District Court's cumulative adjustedstarting point of 40 months' imprisonment (three years and four months'imprisonment) was appropriate. This starting point is within range. I note the originalstarting point was reduced to avoid double-counting the overlapping offences. Thisstarting point reflects the fact that the appellant has 15 previous offences for drivingwhile disqualified.Sentencing test: stage two[53] I accept the District Court's conclusion that two aggravating factors werepresent here. First, the offending occurred when the appellant was on bail for previousoffending. Secondly, he has an extensive, 24-year criminal history with high degreesof recidivism for driving offences, dishonesty offences, and shoplifting and other theft.[54] Mr Durbin was entitled to the full 25 per cent discount for entering guilty pleas.32 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].[55] As regards personal background factors, I note that although it is generalpractice not to submit s 27 reports for the first time on appeal,33 in Clarke v R, theCourt of Appeal admitted a s 27 report for the first time.34 There had been uncertaintybetween the parties as to which party was ordering the report. The Court found that,against the "somewhat unusual background circumstances", the report was "clearlyrelevant" to the issues on appeal, and it was "in the interests of justice to admit thereport."35 The question is whether a similarly unusual background is present in thisappeal. Mr Durbin had not disclosed the information about his childhood sexual abuseat sentencing — he provided details to his counsel afterwards. It is submitted that,without this knowledge, counsel would not have had a basis for obtaining a culturalreport any sooner than in between sentencing and this appeal.[56] There is no dispute that the report is not fresh evidence given counsel for theappellant, with reasonable diligence, could have obtained a report and submitted it inevidence before sentencing.36 I find the cultural report is not credible and cogent inrelation to the issues raised in this appeal.37 It was argued that its particular relevancearises because the report explains the link between the appellant's background andpersonal circumstances, and his offending. However, the fact that the appellant wasaddicted to methamphetamine and, as a result of a relapse into drug use, had descendedrapidly into criminal behaviour, was clearly known to the District Court.[57] The cultural report states that Mr Durbin was the victim of grooming andsexual offending when he was aged approximately seven.[58] The report writer refers to research suggesting there are strong links betweenchildhood sexual abuse and future alcohol and substantive abuse. But the report doesnot examine in any detailed way the connection between childhood sexual abuse andthe offences for which the appellant was sentenced. The lead offences are the twodriving while disqualified offences. There is no obvious connection between theseoffences and childhood sexual abuse.33 Carroll v R [2019] NZCA 172 at [8].34 Clarke v R [2021] NZCA 96 at [14].35 At [16].36 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120] and [124]–[125].37 Clarke v R, above n 34, at [14].[59] The judge did acknowledge that there was some causative connection betweenthe dishonesty offending and the appellant's drug addiction in that, while some of thatoffending was for the purpose of obtaining funds to keep the appellant's firewoodsupply business afloat, some was to get money to buy drugs to feed his addiction.38The judge allowed a five per cent discount from the starting point. As counsel for therespondent notes, given that the dishonesty offences only accounted for 25 per cent ofthe starting point, a five per cent reduction in the overall starting point was generous.Outcome[60] Because the s 27 report is not fresh or cogent in relation to the issues on appeal,I decline to admit it.[61] The end sentence arrived at was within range. The judge made an appropriateallowance for personal factors. There is no basis to disturb the decision.[62] The appeal is dismissed.Churchman JSolicitors:Public Defence Service, Christchurch for AppellantCrown Solicitor, Christchurch for Respondent38 Police v Durban above n 1 at [19].